September 11, 2023 — Lawyers from the U.S. Department of Justice have chosen not to appeal the latest court ruling in a legal battle that has pitted North Atlantic right whales against the Maine lobster industry. As a result of the case—Maine Lobstermen’s Association v. National Marine Fisheries Service, et al.—and a regulatory pause put in place by Congress, the government must now wait until the end of 2028 to implement a new set of rules to protect right whales under the Endangered Species Act and the Marine Mammals Protection Act.
The DOJ, which represented federal fisheries managers, had until August 30 to challenge a June 16 appellate court’s decision.
“It’s my understanding that the Department of Justice will not be appealing the June decision in the MLA case,” Maine Marine Resources Commissioner Patrick Keliher said in an email responding to an August 31 inquiry from this newspaper. “It’s good to know that we can now focus on the important work ahead, which includes developing and implementing a robust right whale monitoring program and alternative gear testing that can inform much more targeted and effective regulations during the next phase of rulemaking, scheduled for 2028.”
“The Maine Lobstermen’s Association’s uncontested victory at the Appeals Court puts an end to the federal government’s abuse of power and misapplication of the law in its regulation of the lobster fishery’s impact on right whales,” agreed Patrice McCarron, policy director for the MLA. “The MLA is encouraged that the federal government has accepted the court’s decision and can begin the important work of developing a new Whale Rule and Biological Opinion that are not based on worst-case scenarios and pessimistic assumptions.”
Neither the National Marine Fisheries Service nor the Conservation Law Foundation, which sided with the agency, responded to repeated requests for interviews prior to deadline.
Background
A year ago, on September 8, 2022, U.S. Chief District Judge James E. Boasberg issued a ruling that would have drastically restricted lobstering and related fisheries in order to reduce mortality risks to North Atlantic right whales. Citing figures from the NMFS’s “biological opinion” that put the right whale population at 350 or less, and estimates about the number of whales that were being entangled in U.S. based fishing gear, Boasberg essentially ordered the end of rope fishing in six months, in order to reduce the current minimal risk of entanglement by an additional 90 percent. The new goal set a standard that sought almost no risk of gear entanglement in the Gulf of Maine.