Saving Seafood

Right whales: Lawsuit on protections could last for months

April 27, 2020 — A judge’s ruling that the federal government didn’t take adequate steps to protect endangered whales will probably result in another monthslong court battle, parties to the lawsuit said.

Environmental groups sued the U.S. government with a claim that regulators’ failure to protect the North Atlantic right whale from harm was a violation of the Endangered Species Act, and U.S. District Judge James Boasberg ruled April 9 that they were right. The right whales number only about 400 and are in the midst of a worrisome decline in population.

The government, environmentalists and industry members who are involved in the lawsuit must still return to court to determine a remedy. Boasberg ruled that the risk posed to the whales by the lobster fishery was too great to be sustainable, and that a remedy could ultimately result in new restrictions on lobster fishing.

The whales are vulnerable to lethal entanglement in lobster fishing gear.

Read the full story from the Associated Press at ABC News

Lobster fishery violates Endangered Species Act, judge declares

April 13, 2020 — U.S. District Judge James Boasberg filed a 20-page order Thursday, April 9, declaring the American lobster fishery violates the Endangered Species Act.

The federal lawsuit challenged a biological opinion filed by NMFS in 2014 stating that the American lobster fishery “may adversely affect, but is not likely to jeopardize, the continued existence of North Atlantic right whales.”

The judge ruled against NMFS, noting that the agency failed to include an “incidental take statement.” That failure, the judge declared, renders the biological opinion illegal under the Endangered Species Act. The suit — filed by the Center for Biological Diversity, Conservation Law Foundation and several other environmental groups — is similar to the California Dungeness crab lawsuit (led by the Center for Biological Diversity) which also claimed the fishery violated the ESA. The finding there forced the crab fishery to file for an incidental take permit, a process that can take years, and negotiate with the plaintiffs on whether there will be fishing seasons in the interim and what those opening and closing parameters will be.

Read the full story at National Fisherman

Lobstermen Vow to Fight for Fishery in Wake of Whale Ruling

April 13, 2020 — A Maine lobster fishing trade group said Monday it will fight for the future of the fishery in court in the wake of a judge’s ruling that the federal government hasn’t done enough to protect rare whales.

U.S. District Judge James Boasberg ruled last week that the National Marine Fisheries Service failed to protect North Atlantic right whales by understating lobster fishing’s ability to kill the whales via entanglement in ropes. The ruling stated a remedy will come in the future, and members of the U.S. lobster industry have said they’re concerned that could mean new fishing restrictions.

Maine Lobstermen’s Association executive director Patrice McCarron said Monday the court has only heard from environmental groups and the federal government so far in the case. She said the group will make sure the judge will “consider evidence about what happens on the water to protect whales.”

Read the full story from the Associated Press at U.S. News

Regulators fell short on protecting right whales from lobster industry, judge rules

April 10, 2020 — The National Marine Fisheries Service violated the Endangered Species Act by not properly reporting the lobster industry’s harmful impacts on the North Atlantic right whale, which it knew to be more than three times what the dwindling species could sustain, according to a federal judge.

In a ruling issued Thursday, U.S. District Judge James Boasberg accused the service of failing to follow the letter of the landmark environmental law because it would have meant the fishery, which rakes in millions of lobster and dollars each year, would not be able to proceed.

“The service and the statute pass each other like ships in the night,” Boasberg wrote in his 20-page ruling.

The decision caught the Maine Department of Marine Resources, which regulates Maine’s $485 million-a-year lobster fishery, and the Maine Lobstermen’s Association, the industry’s largest trade association, off guard. Both agency and association officials said they needed time to digest the ruling before commenting.

Read the full story at the Portland Press Herald

Judge: Failure to Help Whales Skirts Endangered Species Act

April 10, 2020 — A judge has ruled the federal government failed to adequately protect endangered whales from lobster fishing activities, sending the industry and regulators scrambling to figure out what the future holds for one of America’s most lucrative marine industries.

Environmental groups sued the U.S. government claiming regulators’ failure to protect the North Atlantic right whale from harm was a violation of the Endangered Species Act. U.S. District Judge James Boasberg ruled Thursday that the National Marine Fisheries Service did just that by understating lobster fishing’s ability to kill the whales via entanglement in ropes.

Boasberg’s ruling states the service found the “American lobster fishery had the potential to harm the North Atlantic right whale at more than three times the sustainable rate,” but did not take appropriate action about that risk. A remedy will come in the future, the ruling states.

Environmental groups, including the Center for Biological Diversity, which filed the lawsuit, heralded the ruling as a victory in the fight to protect the whales, which number only about 400.

Read the full story from the Associated Press at The New York Times

Gillnet Fishing: Closed Area I and Nantucket Lightship Closure Areas

November 4, 2019 — On October 28, 2019, Federal District Court Judge James E. Boasberg issued an Order and Opinion on a lawsuit challenging a portion of the New England Fishery Management Council’s Omnibus Essential Fish Habitat Amendment 2.

The Order prohibits NOAA Fisheries from allowing gillnet fishing in the former Nantucket Lightship Groundfish and the Closed Area I Groundfish Closure Areas, until such time as NOAA Fisheries has fully complied with requirements of the Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act, consistent with the Opinion.

NOAA Fisheries is studying the Opinion and will put regulations in place as soon as possible to comply with the Order to close the areas to gillnet fishing until further notice.

Read the full story at NOAA Fisheries

New Fishing Rights in Gulf of Maine Upheld by Judge

April 17, 2019 — A federal judge upheld a rule Monday that opens up a portion of the western Gulf of Maine to commercial and recreational fishing for the first time.

The Conservation Law Foundation had challenged the rule last year, claiming the National Marine Fisheries Service wrongly prioritized economic considerations over its conservation duty when it reduced the protected area in that portion of the Gulf by about 25%.

While the rule offered habitat protection in the eastern Gulf of Maine for the first time, the conservation group said the agency and the New England Regional Council should have closed more of the Gulf to fishing.

U.S. District Judge James Boasberg found Monday, however, that the rule passes muster.

Read the full story at Courthouse News Service 

Feds beat fishermen: Court dismisses challenge to Atlantic monument

October 10, 2018 — A federal judge upheld the creation of the Northeast Canyons and Seamounts Marine National Monument last week, dismissing a lawsuit from commercial fishing groups that challenged presidential authority to establish the monument.

The national monument, created by former President Barack Obama, was authorized under the Antiquities Act. Representatives from the Massachusetts Lobstermen’s Association argued that the act does not include authorization to protect bodies of water and that the monument in question, an area of nearly 5,000 square miles, was too large.

But U.S. District Judge James Boasberg ruled that the Northeast Canyons and Seamounts Marine National Monument complied with the law and sided with the Trump administration’s motion to dismiss the suit.

“In all, plaintiffs offer no factual allegations explaining why the entire monument, including not just the seamounts and canyons but also their ecosystems, is too large,” wrote Boasberg in his decision.

He also clarified that the Antiquities Act histories grant that waterways, as well as land, can be protected under the act.

Read the full story at National Fisherman

 

Lawsuit against national marine monument moving forward

March 29, 2018 — A lawsuit against a national marine monument, started nearly a year ago, is moving forward once more after a U.S. District Court Judge lifted a stay placed on the case.

The Northeast Canyons and Seamounts National Marine Monument, established via executive order using the Antiquities Act by President Barack Obama, set aside 4,913 square miles (12,724 square kilometers) of ocean 130 miles (209 kilometers) off the coast of New England. Soon after the monument was established, several fishing groups sued the federal government arguing that the move exceeded the President’s authority.

The motivation behind the lawsuit stems from the monument’s blanket ban on all commercial fishing. While a grandfather period of seven years was given to the lobster and deep-sea red crab fisheries, all other fishing operations have been banned from the area.

Now, thanks to U.S. District Court Judge James E. Boasberg’s lift of a stay granted on 12 May 2017, the lawsuit will begin to move forward once more. The lawsuit argues that Obama did not have the authority to establish the monument based on the Antiquities Act, given that the ocean is not “land owned or controlled by the federal government.”

Secretary of the Department of the Interior Ryan Zinke recommended, in a review released in December 2017, that the proclamation of the monument be amended to allow the local fishery management council to make decisions as authorized by the Magnuson-Stevens Act.

“There is no explanation in the proclamation as to why the objects are threatened by well-regulated commercial fishing,” wrote Zinke in his recommendations. “The proclamation should be amended, through the use of appropriate authority.”

Since that recommendation, however, the Trump administration has failed to act.

“Fishermen have waited a year for the government to respond to their lawsuit challenging a clear case of Antiquities Act abuse – locking fishermen out of an area of ocean as large as Connecticut,” said Jonathan Wood, an attorney with the Pacific Legal Foundation who is representing the plaintiffs. “The court’s decision to lift the stay will now require President Trump to decide whether to act on the secretary’s recommendation or defend President Obama’s unlawful monument decision in court.”

So far, said Wood, they haven’t heard whether or not the administration plans to defend the monument in court.

Read the full story at Seafood Source

 

April Showdown Looming for Battle Over Atlantic Ocean Monument

March 28, 2018 — WASHINGTON — Fisherman and lobstermen reeled in a temporary victory after a federal court agreed to lift a 10-month stay on a lawsuit that seeks to reverse Obama-era protections for the first national marine monument in the Atlantic Ocean.

In September 2016, former President Barack Obama used powers under the Antiquities Act to designate the Northeast Canyons and Seamounts National Monument.

The 5,000-square-mile monument, rich with deep coral and home to sperm whales, sea turtles and dolphins, is located just off the Georges Bank near Cape Cod, Massachusetts.

The Obama-era order closed off the area to commercial fisherman, except for a handful of crabbers who were grandfathered into the deal and allowed to continue trawling for just seven years more until fishing activity would be completely barred in the region.

The plaintiffs who originally challenged the monument designation in March 2017 include the Pacific Legal Foundation, the Atlantic Offshore Lobsterman’s Association, the Long Island Commercial Fishing Association, the Rhode Island Fisherman’s Alliance and the Garden State Seafood Association.

In their original lawsuit, the groups claimed Obama “exceeded his power under the Antiquities Act” when cordoning off the ocean acreage.

They argued the sea is not “land owned or controlled by the Federal government and thus not within the president’s proclaiming authority.”

“Unless a permanent injunction is issued to forbid the implementation of the proclamation’s fishing prohibitions, plaintiffs are and will continue to be irreparably harmed … and will continue to suffer a diminution of income, reduced fishing opportunities and depletion of their investment in their boats and permits,” the March 2017 complaint states.

This March 15, U.S. District Judge James Boasberg finally agreed to allow the fisherman’s lawsuit to continue, effectively turning up  pressure on the Trump administration to act.

Read the full story at the Courthouse News Service