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 The priorities document is a policy statement that amends nothing and can be withdrawn.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

Fishing groups praise US Senate Farm Bill for including fisheries support

June 18, 2024 — U.S. fishing groups are praising federal lawmakers for incorporating significant fisheries support into a U.S. Farm Bill framework recently released by Senate Republicans.

The Farm Bill is the main piece of legislation governing the U.S. Department of Agriculture (USDA), and fishing industry groups have been working to use the forthcoming renewal of the law as an opportunity to raise the profile of seafood within the department.

Read the full article at SeafoodSource

ALASKA: Alaska lawmakers approve task force to consider responses to seafood industry ‘implosion’

May 14, 2024 — A special legislative panel is to make recommendations about state policies to rescue Alaska’s seafood industry, a major pillar of the economy that is mired in crisis, under a bill that won final passage over the weekend.

The measure, Senate Concurrent Resolution 10, would establish an eight-member seafood industry task force, with four state senators and four state House members and with the Senate president as chair.

The House passed it nearly unanimously on Saturday. The Senate, which originally passed it on April 19, on Sunday gave unanimous approval to changes made in the House.

The task force, to present recommendations to the Legislature by Jan. 21, 2025, is charged with finding some kind of response to the “unprecedented economic implosion of our industry,” Sen. Bert Stedman, R-Sitka, one of the sponsors, said in floor comments on April 19.

Read the full article at Alaska Public Media

US House, Senate jousting over FDA, NOAA funding

November 3, 2023 — The U.S. Senate passed a package of appropriations bills in late October that included funding for the U.S. Food and Drug Administration (FDA) and U.S. Department of Agriculture (USDA).

The legislation includes key provisions for the domestic seafood industry and brings Congress one step closer to providing funding for fiscal-year 2024 and avoiding a government shutdown. Congress agreed to a last-minute deal in September to avert a partial shutdown, but that agreement expires 17 November.

Read the full article at SeafoodSource

West Coast Fisheries Disaster Funding Included in Senate Appropriations Bill

February 8, 2018 — SEAFOOD NEWS — As news of a Wednesday night Senate agreement on the federal budget bill that included millions for disaster aid filtered out, many fishermen and processors on the West Coast wondered whether fisheries aid was included.

The short answer: Yes, according to Pacific Coast Federation of Fishermen’s Associations Executive Director Noah Oppenheim.

“We called on Congress to step up and provide fishery disaster assistance, and today they delivered. West Coast fishermen express their heartfelt gratitude to key senators and members of congress who fought hard for their constituents,” Oppenheim said in a statement. “Fishery disasters don’t flood cities or burn down houses, but they do devastate coastal communities and threaten the fishing way of life. These fishery disaster appropriations will go a long way towards beginning the healing process for hundreds of working fishing families on the West Coast.”

Read the full story with a subscription at Seafood News

 

Senate Subcommittee to Continue Hearing Series on Magnuson-Stevens Act

October 20, 2017 — WASHINGTON — The following was released by the Senate Committee on Commerce, Science & Transportation:

U.S. Sen. Dan Sullivan (R-Alaska), chairman of the Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard, will convene the hearing titled “Reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act: Fisheries Science,” at 2:30 p.m. on Tuesday, October 24, 2017. The hearing is the fourth of the series and will focus on the state of our nation’s fisheries and the science that supports sustainable management.

Witnesses:

  –  Mr. Karl Haflinger, Founder and President, Sea State, Inc
–  Dr. Ray Hilborn, Professor, University of Washington School of Aquatic and Fishery Sciences
–  Dr. Michael Jones, Professor, Michigan State University Quantitative Fisheries Center
–  Dr. Larry McKinney, Director, Texas A&M University Harte Research Institute for Gulf of Mexico Studies

Hearing Details:

Tuesday, October 24, 2017
2:30 p.m.
Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard

This hearing will take place in Russell Senate Office Building, Room 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

Kelly Ayotte Supports NH Fishermen Challenging At-Sea Monitoring Program

Editor’s Note: Cause of Action Executive Director Dan Epstein addressed Senator Ayotte’s press release by stating that “Cause of Action, on behalf of the fishermen we are representing in this matter, applaud Senator Ayotte, and thank her for her support. We appreciate any help we can get on educating the public about this unlawful regulation that would devastate the fishing industry and would put good, hard-working people out of work.”

WASHINGTON — December 10, 2015 — The following was released by the office of U.S. Senator Kelly Ayotte (R-N.H.):

U.S. Senator Kelly Ayotte (R-N.H.) today expressed support for New Hampshire fishermen who filed a lawsuit in federal court challenging the legality of the National Oceanic and Atmospheric Administration’s (NOAA’s) at-sea monitoring program:

“I support New Hampshire fishermen in their fight against NOAA’s at-sea monitoring fees. I continue to believe that NOAA should fully fund the at-sea monitoring program and Senator Shaheen and I have also called for a full investigation of the program. Going forward, I will continue to do everything in my power to ensure the survival of New Hampshire’s historic and iconic commercial fishing industry.”

In September, Ayotte introduced legislation to terminate NOAA’s independent third-party at-sea monitoring program for the Northeast Multispecies Fishery unless NOAA fully funds the program using funds within its existing budget. She also sent a letter, together with U.S. Senator Jeanne Shaheen (D-N.H.), to the Department of Commerce Acting Inspector General David Smith calling for a full investigation into NOAA’s at-sea monitoring program for the Northeast Multispecies Fishery, which includes New Hampshire’s coastal region.

Also in September, Ayotte hosted a roundtable discussion with NOAA officials, New Hampshire fishermen, and business leaders at the Pease Tradeport in Portsmouth. She invited NOAA officials to New Hampshire to hear directly from fishermen and business leaders about concerns with fishing regulations, federal catch-share limits, NOAA’s process for determining fish stocks, the imposition of fees for “at-sea monitors” on commercial fishing vessels, and NOAA’s implementation of the Magnuson-Stevens Act. Ayotte is a member of the Senate Commerce Committee and the Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard.

Read the original release from the office of U.S. Senator Kelly Ayotte (R-N.H.)

SENATOR MARIA CANTWELL INTRODUCES BIPARTISAN BILL TO ESTABLISH NATIONAL OCEAN ACIDIFICATION MONITORING STRATEGY

July 29, 2015 — WASHINGTON, D.C. — U.S. Senator Maria Cantwell (D-WA) introduced a bipartisan bill to enhance ocean monitoring, research and forecasting. The Coordinated Ocean Monitoring and Research Act (S. 1886) would create a national ocean acidification monitoring strategy to prioritize investments in ocean acidification sensors to areas that need it most. The bipartisan bill also directs the National Oceanic and Atmospheric Administration (NOAA) and the National Science Foundation to make investments in adaptation and mitigation research so we understand how to make our coastal economies more resilient to the threat of ocean acidification.

“Ocean acidification will have a vast impact on commercial and environmental conditions across the nation – and currently threatens jobs in Washington State.  Shellfish in the Pacific Northwest have already been negatively affected, but we don’t know yet what this means for salmon populations and larger coastal ecosystems,” said Cantwell. “This bill ensures that NOAA is making the appropriate investments in research, and monitoring the ongoing impact of this threat to our coastal economies.”

Ocean acidification results from changing ocean chemistry when seawater absorbs increasing amounts of carbon dioxide in the atmosphere, and it is already negatively impacting coastal economies in Washington state.  A recent study in Nature Climate Change  identifies communities at significant risk for sustained economic losses resulting from ocean acidification’s impact on shellfish fisheries.  Communities at the highest risk were found in these 15 states: Massachusetts, New Jersey, Virginia, Washington, Oregon, Connecticut, New York, Rhode Island, Maine, Florida, North Carolina, California, Louisiana, Maryland, and Texas.  A July 2014 report published in Progress in Oceanography identified seafood jobs across Alaska that could be impacted by ocean acidification, such as king crab and salmon.

The Coordinated Ocean Monitoring and Research Act would require NOAA to build upon these models and conduct a nationwide economic vulnerability assessment to determine the impact ocean acidification would have on our economy, and our coastal ecosystems. The bill would also require NOAA to develop a strategy for the deployment of new ocean acidification sensors — based on the economic vulnerability assessment.   Access to real-time ocean acidification data has been critical for shellfish farmers in Washington state. Enhanced data collection structures included in this legislation is critical for scientists to close knowledge gaps, and help us understand how ocean acidification could impact our fisheries and ecosystems.

In 2010, Cantwell secured funding to acquire and deploy ocean acidification sensors near major shellfish hatcheries in Washington state. Today, these sensors have been integrated into NOAA’s national ocean observing program—the IOOS program. These sensors allow shellfish growers to monitor ocean acidity in real-time and close off their shellfish rearing tanks when ocean acidity is too high. Cantwell also has previously highlighted why additional research is needed to understand ocean acidification’s potential damage to critical salmon food sources – including small crustaceans.

Cantwell’s bill also would expand the installation of high frequency radar stations, which are part of the Integrated Ocean Observing System (IOOS) network. Last year, Cantwell toured the U.S. Coast Guard Air Station in Port Angeles, where she learned how the Coast Guard uses high-frequency radar to assist in finding missing or distressed boaters in the mid-Atlantic. Washington state has the largest high-frequency radar gap on the West Coast – with nearly 80 percent of the state’s coastline lacking high-frequency radar coverage. High-frequency radar also can be used to map oil spills and to monitor harmful algae blooms and track water quality.

Cantwell’s bill would also improve coordination between ocean science and monitoring and the National Weather Service, which is vital in the Pacific Northwest where nearly all of our storms originate offshore.  Lastly, the bill authorizes a program to measure and share marine sound.  Monitoring sound in the marine environment is important so we can understand the impacts on Southern resident orcas and other key species.

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