Saving Seafood

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 The priorities document is a policy statement that amends nothing and can be withdrawn.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.

Court restores protections for critically endangered whales off New England

February 3, 2025 — A Massachusetts court on Monday restored federal protections for endangered whales off New England against entanglement in fishing equipment, overruling a lower court that struck down the federal rule.

The Massachusetts Lobstermen’s Association challenged the National Marine Fishers Service (NMFS) rule, finalized in 2024, which closed a 200-square-mile stretch of federal water between February and April. The severely endangered right whale, hunted nearly to extinction during the age of whaling, frequents the area during that period. Ship strikes and entanglement in lobstering gear are a major threat to the whales, believed to have a remaining population of fewer than 400.

Read the full article at The Hill

Massachusetts lobster fishing limits to protect whales restored by appeals court

January 31, 2025 —  A federal appeals court on Thursday restored a U.S. agency rule restricting lobster and Jonah crab fishing off the Massachusetts coast to protect endangered whales, rejecting a claim that the agency did not deserve deference under a recent landmark Supreme Court case.

In a 3-0 decision, the 1st U.S. Circuit Court of Appeals in Boston said the National Marine Fisheries Service acted lawfully in banning from Feb. 1 to April 30 annually the use of vertical buoy lines in a 200-nautical-mile area of federal waters called the Massachusetts Restricted Area Wedge.

The Massachusetts Lobstermen’s Association sued to block the rule, saying a Dec. 2022 appropriations rider reflected the U.S. Congress’ intent not to extend emergency protections for North Atlantic right whales from earlier that year.

A federal district judge declared the rule void last March.

But in Thursday’s decision, Circuit Judge Seth Aframe called that a mistake because the rule was “in place” when the rider took effect, though it was not being enforced at that time.

Read the full article at Reuters

MASSACHUSETTS: MLA Annual Weekend & Trade Show returns to Cape Cod

October 16, 2024 — The Massachusetts Lobstermen’s Association (MLA) will hold its Annual Weekend & Trade Show 2025 at the newly renovated Margaritaville Cape Cod Resort in Hyannis, MA, from January 30th to February 2nd, 2025 (the 30th is the set-up day). The show hours are Friday and Saturday, 9:00 AM—4:00 PM, and Sunday, 8:00 AM—10:00 AM.

The Annual Weekend & Trade Show is to provide an opportunity for commercial lobster-men, commercial fishermen, seafood dealers and equipment suppliers to get together and talk about ALL things fishing related, educational seminars and, to have some fun too.

The MLA provides annual educational grants to college bound children of our members and has given out over nine thousand dollars per year for the last many years.

Read the full article at National Fisherman

MA lobstermen want to invent a better lobster trap

December 7, 2023 — Patrick Flanary: For years, right whale advocates and engineers have been trying to develop new lobster fishing gear designed to prevent whales from entanglements. But most local lobstermen say they’re against this so-called “on demand” fishing gear that’s been created. Now, as CAI’s Eve Zuckoff reports, lobstermen have decided to come up with their own technology. Eve, you were the first to report this, thanks for being here this morning.

Eve Zuckoff: Thanks for having me.

Patrick Flanary: So the Massachusetts lobstermen’s association has just been awarded a $1.2 million grant to develop new fishing gear. What’s their proposal?

Eve Zuckoff: Over the next year they’ll be working with an engineer to develop a “pinger” inside a lobster trap that sends satellite signals to show where traps are on the seafloor. So whenever a lobsterman is ready to collect his catch, he or she will go wherever the pinger says, throw a grapple — these metal hooks — down into the water, and haul up the traps.

All of this eliminates the need for a traditional buoy marking where their gear is, and an extra rope called an “end line” that’s known to entangle whales.

But to be clear: lobstermen don’t want to use this gear year round — just during closures — specifically an upcoming 3-month-long period where they have to be out of local waters to protect the whales.

Patrick Flanary: What would this pinger/grappling system replace exactly?

Eve Zuckoff: In recent years, engineers have developed “on demand gear,” sometimes called “ropeless gear.” Here’s how that works: when lobstermen set their traps, there is an inflatable bag and compressed air tank — or something similar — inside one of them. And when a lobsterman is ready to haul up their gear, they hit a button on an app, which triggers the bag to inflate, and the bag floats up to the surface where the lobsterman can haul it all in. But Beth Casoni, head of the Massachusetts Lobstermen’s association said her group is not a fan.

“The current systems are cost prohibitive,” she said. “Even if the government was to buy them, which would be ludicrous, the price tag would be insane for the entire lobster fishery.”

So the on-demand technology is similar to the pinger and grappling hook in that there’s no more buoy and stagnant rope just waiting in the water, ready entangle a passing whale, but the pinger eliminates the need for a costly inflatable bag, air tank, and other tech.

Patrick Flanary: So cost is obviously a factor. Are the pingers cheaper?

Eve Zuckoff: Ding, ding, ding! For now, as Casoni said, on demand gear is being subsidized by the federal government, but at some point, the cost could fall in fishermen to the tune of $3,000-7,500 for one line of traps. And lobstermen typically fish many lines of traps. The Massachusetts Lobstermen’s Association hopes pingers will cost just $300-$400 per line of traps.

Read the full story at NHPR

 

Right whales stay in Cape Cod Bay longer, and later

June 16, 2022 — It isn’t high gas prices that changed the travel plans of right whales.

A new study in Global Change Biology by nine authors discovered that over the last couple of decades North Atlantic right whales are most active in Cape Cod Bay 18 days later than before.

That’s a shift — with a longer stay in the month of May — that could potentially bring the whales further into conflict with the region’s annual boating  and lobster season and require an extended season of protections.

“The state has a flexible rule in place — where they can extend fishing closures and small boat speed restrictions — that now is in place up the coast to New Hampshire,” the study’s lead author, Dan Pendleton of the New England Aquarium, said. “Massachusetts Bay has seen more right whales than it used to.”

“One of the problems with migratory animals is they can get into big trouble moving into shipping lanes so if we can move and adapt the protections as (whales) adapt to climate change, that would be ideal,” Pendleton said. “So much seems out of our control but one thing we can do is push for regulations that are responsive to the needs of an endangered species.”

Beth Casoni, executive director of the Massachusetts Lobstermen’s Association, hadn’t yet seen the study, which was published June 7. Casoni said, therefore, she couldn’t comment until she has been able to read it.

Read the full story at the Cape Cod Times

MASSACHUSETTS: Rep. Moulton introduces bill geared to lobstermen coping with right whale rules

May 31, 2022 — U.S. Rep. Seth Moulton, D-Salem, has introduced a bill called the CLAW (Conserving Lobstering and Whales) Act that would establish a tax credit to make it easier for lobstermen to afford gear meant to reduce the chance of endangered right whales becoming entangled.

Hunted to the brink of extinction by the early 1890s by commercial whalers, it’s estimated there are fewer than 350 right whales in existence, according to NOAA Fisheries’ website. Vessel strikes and entanglement in fishing gear are the leading causes of mortality, NOAA Fisheries says.

However, there is concern that regulations to conserve right whales, including seasonal area closures and the added cost for weak rope and inserts and gear marking requirements, have created an added cost burden to lobstermen.

Moulton said he and his office have been working on the legislation with various industry stakeholders, including the Massachusetts Lobstermen’s Association and the Massachusetts Seafood Collaborative.

Read the full story at the Gloucester Times

Lobstermen Praise New Fisheries Legislation

May 20, 2022 — The Massachusetts Lobstermen’s Association praised the passing of legislation that will set up a commission to decide where federal grants for the fisheries will be directed.

The American Fisheries Advisory Committee Act, recently signed into law by President Joe Biden, will call for the establishment of a committee to help determine awards of fisheries research and development grants.

The bipartisan legislation was cosponsored by Senators Ed Markey (D-MA) and Elizabeth Warren (D-MA).

Read the full story at CapeCod.com

Feds institute ’emergency’ lobster closure to protect right whales

March 3, 2022 — The federal government will close an additional 200 square miles off the coast of Massachusetts to lobster and Jonah crab fishing in April to protect endangered right whales.

The National Oceanographic and Atmospheric Administration (NOAA) is closing the area on an “emergency” basis, without taking public comment — a move that frustrates lobstermen already contending with extensive fishing restrictions.

Massachusetts Lobstermen’s Association Executive Director Beth Casoni said she recognized that the “wedge” of federal water is particularly dangerous for right whales.

“If there’s an entanglement of serious injury or mortality attributed to the American lobster fishery, it’s not going to be good for anyone, anywhere,” she said.

But Casoni said she was worried by NOAA closing the waters through an emergency order.

Read the full story at WBUR

Despite threats from fellow fishermen, lobstermen press Mass. to allow ropeless fishing in closed areas

February 1, 2022 — The lobstermen viewed themselves as trailblazers, even calling themselves “Pioneers for a Thoughtful Coexistence.” That was before fellow fishermen threatened to burn their boats and accused them of trying to steal their catch.

In an effort to prove that there’s a way for their industry to resume fishing in coastal waters where Massachusetts banned lobstering to protect endangered whales, they have asked regulators to allow them to set their traps without vertical buoy lines. Those heavy ropes, which connect traps on the seafloor to buoys on the surface, have entangled large numbers of North Atlantic right whales, scientists say, seriously injuring or killing the critically endangered species.

If the state approves their proposal, which has received support from right whale scientists and environmental groups, it would be the first time commercial lobster fishing would be allowed without buoy lines in any state waters.

“I’ve been trying my best to get our guys back fishing,” said Michael Lane, 46, a lobsterman who fishes 800 traps out of Cohasset. “I’ve seen so much taken away from us, for years; it’s nice to finally have the chance to see something going in the right direction. This could be a win for the fishing community.”

To protect right whales, some areas along the coast, such as Cape Cod Bay, have since 2015 been closed to lobster fishing between February and May, when large numbers of them feed in those waters. As the decline of the whales’ population has accelerated — scientists estimate their numbers are down 30 percent in the last decade — federal officials pressured the state to act. As a result, state officials last year expanded the three-month ban on traditional lobster fishing to most of its coastal waters.

“I do not expect to issue a decision for a few more weeks,” said Dan McKiernan, director of the state Division of Marine Fisheries.

He declined to comment on whether he’s inclined to permit ropeless fishing. “I am still gathering information from staff and considering the extensive comments,” he said.

After years of protesting the annual closures, officials at the Massachusetts Lobstermen’s Association urged McKiernan to reject the pioneers’ proposal, arguing that it could lead to “catastrophic” conflicts with other fisheries.

Read the full story at The Boston Globe