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Opinion on The Maine Lobstermen Decision and Recent Federal Fisheries Actions

September 8, 2026 — The following opinion was published by Samuel Blatchley:

Three years ago the D.C. Circuit told the National Marine Fisheries Service it could not build a biological opinion on worst-case assumptions. Last week the agency wrote that principle into its own priorities.

In Maine Lobstermen’s Ass’n v. National Marine Fisheries Service, 70 F.4th 582 (D.C. Cir. 2023), the court held that the Service may not, when faced with uncertainty, give the benefit of the doubt to an endangered species by relying on worst-case scenarios or pessimistic assumptions. The ESA calls for an empirical judgment about what is likely. The effects of an action are those reasonably certain to occur, found on clear and substantial information. Projections the agency itself concedes are very likely wrong do not meet that standard. The court reversed, directed judgment for the lobstermen, and ordered the biological opinion vacated as applied to the lobster and Jonah crab fisheries. I was on the case for the Massachusetts Lobstermen’s Association, alongside the Maine Lobstermen’s Association, the State of Maine, and Lodge 207. Our clients were facing regulations that would have taken jobs and boats out of the water.

Two things happened last week that build on it.

On September 1 the House passed H.R. 9436, the Northeast Lobsterman Protection Act, 219 to 196, extending the current regulatory pause for the lobster and Jonah crab fisheries from 2028 to 2035. The Administration issued a statement strongly supporting passage. It now goes to the Senate.

On September 2 NOAA Fisheries issued its agency-level priorities. On the Northeast lobster fishery, the agency states it will not mandate ropeless gear, that any decision support tools or models used by the Take Reduction Team must be independently and empirically reviewed, and that any future Atlantic Large Whale Take Reduction Plan will rest on best available data rather than worst-case scenario modeling.

That last clause applies the principle the court enforced in 2023, and returns the agency to the position it had taken itself in 2019 before the biological opinion abandoned it.

Worth keeping the distinction clear. The bill would change a statute. The priorities document is a policy statement that amends nothing and can be withdrawn. What lasts is the record. The Take Reduction Team is building the file the next rule will stand on, and how its models get vetted will matter long after the announcement does.

Common sense science is not a slogan. It is what the statute already required, and what it took a court to enforce. The Senate should pass H.R. 9436, and the agency should be held to the standard it has now stated, so the next rule protects both the whale and the communities that fish alongside it.

#FisheriesLaw #Lobster #EndangeredSpeciesAct #RightWhale #AdministrativeLaw

Samuel P. Blatchley is a maritime, fisheries, and insurance attorney and Proctor in Admiralty at Eckland & Blando LLP, where he represents vessel owners, commercial fishermen, marine businesses, insurers, and industry organizations in complex litigation, regulatory matters, marine casualties, coverage disputes, and commercial disputes throughout the United States. His practice includes federal admiralty litigation, fisheries and environmental regulation, marine insurance, limitation of liability, vessel arrests and maritime liens, and matters involving NOAA Fisheries and other federal and state agencies. He has represented fishing-industry interests in significant state and federal litigation, including the D.C. Circuit challenge to NOAA Fisheries’ North Atlantic right whale regulations on behalf of the Massachusetts Lobstermen’s Association. Blatchley is admitted to practice in Massachusetts, Rhode Island, Maine, and New York and is a graduate of Tulane University Law School, where he earned a Maritime Law Certificate and served on the Tulane Maritime Law Journal.

Feds to weigh possible new fishing rules and restrictions to protect Mid-Atlantic whales

August 17, 2026 — Federal fisheries officials are beginning a process that could eventually lead to new fishing restrictions along the East Coast designed to protect native whale species.

The National Marine Fisheries Service, part of the National Oceanic and Atmospheric Administration, announced Aug 14 that it intends to conduct an environmental review of potential changes to the Atlantic Large Whale Take Reduction Plan. The plan is intended to reduce deaths and serious injuries of North Atlantic right whales, humpback whales, and fin whales caused by entanglements in commercial trap/pot and gillnet fishing gear along the East Coast.

NMFS stresses that Friday’s publication merely begins a public comment process and is not a proposed federal rule.

Read the full article at WBOC

Mid-Atlantic Fishery Management Council to Meet August 11-13, 2026, in Philadelphia, PA

July 21, 2026 — The following was released by the The Mid-Atlantic Fishery Management Council:

The Mid-Atlantic Fishery Management Council will meet Tuesday, August 11 – Thursday, August 13, 2026 at The Westin Philadelphia. The meeting is open to the public and will also be accessible via webinar. Meeting materials, webinar information, and public comment instructions are available on the August 2026 Council Meeting Page.

Major agenda items include:

  • Surfclam and Ocean Quahog: Adopt 2027-2028 specifications.
  • Butterfish: Adopt 2027-2029 specifications and consider alternative trip limits and other measures intended to increase quota utilization.
  • Monkfish and Skates: Review feedback received during the Spring 2026 listening sessions on potential fishery improvements.
  • Chub Mackerel: Review 2027 specifications and consider revisions if needed.
  • Northeast Fisheries Science Center Surveys: Receive an update on recent fishery-independent surveys and the Regional Industry Based Trawl Survey.
  • Atlantic Large Whale Take Reduction Plan: Receive a presentation from NOAA Fisheries on the scoping process for potential future modifications to the plan.
  • Summer Flounder, Scup, Black Sea Bass, and Bluefish: Review 2027 specifications and consider revisions, if needed.
  • Scup Winter I Framework (final action): Review alternatives and take final action.
  • Business Session: Receive committee, agency, and liaison reports; approve an appointment to the Scientific and Statistical Committee; and provide an opportunity for general public comment.

The Council welcomes public comment from in-person and remote participants. Instructions and deadlines for submitting comments are available on the meeting page.

Questions? Contact Mary Sabo at msabo@mafmc.org or (302) 526-5261.

MASSACHUSETTS: NMFS plans to end ‘Massachusetts Wedge’ exemption for trap gear

September 21, 2023 — The National Marine Fisheries Service is taking public comments until Oct. 18 on its plan to make the so-called Massachusetts Restricted Area Wedge fully covered by seasonal prohibitions on fishing trap and fish pot gear with vertical buoy lines.

The change is in a proposed amendment to the Atlantic Large Whale Take Reduction Plan for expanding boundaries of the Massachusetts Restricted Area to include the wedge between state and federal waters. Previously exempted from the strictest gear limits, the was closed by emergency rulemaking in 2022 and 2023 when federal officials said there was immediate risk to North Atlantic right whales from “mortality and serious injury caused by buoy lines in an area with a high co-occurrence of whales and buoy lines. This risk is expected to recur annually.”

Closing the wedge closes a gap in protection for right, fin and humpback whales from entanglement danger during the existing Massachusetts Restricted Area seasonal closure from February 1 through April 30 every year, according to the agency. Its proposed rule and draft environmental assessment can be found on the NOAA Fisheries webpage.

Read the full article at the National Fisherman

Maine lobster industry could receive nearly $14 million in federal aid

July 5, 2022 — Maine’s lobster industry could receive most of the $14 million the federal government is allocating to help lobstermen comply with new rules that are intended to save the critically endangered right whale from extinction.

If approved by Congress, the $14 million will be doled out to states through the Atlantic States Marine Fisheries Commission to cover costs incurred by the fishing industry to comply with the Atlantic Large Whale Take Reduction Plan. Costs may include gear modification, configuration and marking, both in federal and state waters.

Maine is expected to receive the lion’s share of the money, since the state is home to the vast majority of the American lobster fleet. Maine lobstermen already received more than $17 million in federal aid in March as part of a $1.5 trillion omnibus funding package.

It was not clear Friday how the proposed federal funding might be allocated among Maine’s 4,500 to 5,000 licensed lobstermen.

The funding has been included in the House of Representatives’ Commerce, Justice, and Science Fiscal Year 2023 Appropriations bill. The House Appropriations Committee approved the bill Friday. From there, it will be voted on by the full House.

Read the full story at The Portland Press Herald

NMFS to expand Northeast ropeless gear trials

June 1, 2022 — Up to 100 commercial lobster vessels would be allowed to test alternative gear without static vertical lines, under an exempted fishing permit application filed by the Northeast Fisheries Science Center.

Up to 30 of those boats would be allowed to fish using so-called ropeless gear in areas where conventional lobster gear with vertical line is restricted under the Atlantic Large Whale Take Reduction Plan, according to a notice issued May 31 by the National Marine Fisheries Service.

The permit application, to be published in the June 1 Federal Register, is subject to a public comment period through June 15. NMFS is looking to on-demand or pop-up buoy retrieval systems in the lobster fishery as a long-term solution to reducing whale entanglements in lobster gear, particularly for the highly endangered northern right whale.

Read the full story at National Fisherman

Maine lobstermen fear disaster as new gear regulations take effect

May 2, 2022 — Doug McLennan looks out his window in South Thomaston every morning at the traps and boats in his yard and worries about the future of lobster fishing in Maine.

McLennan’s wife, Laura, is his sternman. His two sons, who have homes on either side of his driveway, are lobster fishermen, too. His great-grandfather was the legendary “Tall Barney Beal” of Jonesport, a Grand Banks fisherman and the 6-foot-6 descendent of the original settler of Beals Island, known for his incredible strength.

McLennan isn’t worried about the state of the fishery. Despite a dip in landings last year, more than 100 million pounds of lobster were hauled and their value broke records. Also, Maine’s lobstermen have a reputation for sustainable practices that preserve the stock for future generations, he said.

What worries McLennan and thousands of other Maine lobstermen is the latest round of federal regulations designed to protect the endangered North Atlantic right whale, and additional measures being planned for the next decade. The newest regulations took effect Sunday, though their enforcement has been delayed until supply chain issues for some of the required gear are resolved.

This is just the latest in gear regulation change required by the Atlantic Large Whale Take Reduction Plan, which was put in place in 1997 and has been amended several times since. The current changes comprise the first phase of a 10-year conservation plan to reduce the risk of right whale entanglements in fishing gear by 98 percent.

Many lobstermen have raised concerns about safety and the potential for gear failure and loss of expensive traps under the new rules, and they worry about what is coming next.

Read the full story at the Portland Press Herald

Maine Lobstering Union Files Suit for Emergency Relief Against NMFS

October 4, 2021 — The Maine Lobstering Union (MLU) became the latest from the lobster industry to file a federal lawsuit against the National Marine Fisheries Service (NMFS) due to the Atlantic Large Whale Take Reduction Plan Modifications announced on August 31.

The MLU filed a civil action in the United States District Court for the District of Maine, seeking emergency relief related to fishing ground closures that will come into effect due to the recent modifications. Fox Island Lobster Company of Vinalhaven and Frank Thompson, a sixth-generation fisherman, who together with his wife Jean, own and operate Fox Island; and the Damon Family Lobster Company of Stonington are also Plaintiffs on the case.

The Complaint names as Defendants the Secretary of the United States Department of Commerce, and the Assistant Administrator of the National Oceanic and Atmospheric Administration, and NMFS.

Read the full story at Seafood News

 

Lobster Lawsuit: Maine org sues feds over right whale rules

September 28, 2021 — On Monday, Sept. 21, the Maine Lobstermen’s Association filed a lawsuit challenging NMFS’ new rule for Northeast lobster and Jonah crab fisheries.

The rule, filed on Aug. 31, is a modification of the Atlantic Large Whale Take Reduction Plan and is supposed to reduce the risk of entanglements to North Atlantic right whales in U.S. waters. The association says the modifications address only the perceived risk of Maine fisheries, which have no documented right whale interactions.

The lawsuit, filed against NMFS and the Secretary of Commerce in U.S. District Court for the District of Columbia, argues that “the federal government’s draconian and fundamentally flawed 10‐year whale protection plan… will all but eliminate the Maine lobster fishery yet still fail to save endangered right whales.” The result would put both fishermen and whales in harm’s way, industry leaders have said.

Read the full story at National Fisherman

 

MAINE: New federal lobstering restrictions spark backlash from industry and elected officials

September 2, 2021 — After long hours hauling traps off the coast of South Thomaston on Wednesday, Barry Baudanza hadn’t had the chance to fully absorb all the changes headed his way after federal officials announced new rules governing the lobster industry the day before, but he knew one thing right off the bat: “This was the worst-case scenario.”

Among other changes, the National Oceanic and Atmospheric Administration’s newly released Atlantic Large Whale Take Reduction Plan will put more than 950 square miles of the Gulf of Maine off-limits to traditional lobstering from October through January – the area’s most lucrative season. The goal is to reduce risk to endangered North Atlantic right whales by at least 60 percent.

But lobstermen, the fishing industry and elected officials are pushing back. They say the new rules will be expensive, dangerous, burdensome and impractical, and won’t reduce the risk to whales.

And despite lobstermen’s concerns and protestations that they aren’t even seeing right whales in Maine waters, conservationists argue that the plan does not go far enough to protect the critically endangered animals.

Read the full story at the Portland Press Herald

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