Maine won’t be suing federal regulators over new commercial lobstering restrictions intended to protect an endangered species of whale, but it isn’t giving up the fight entirely.

The Maine Department of Marine Resources has been advised against suing federal officials over a controversial new set of rules designed to protect the endangered North Atlantic right whale from being harmed by the lobster industry, but Commissioner Patrick Keliher told Maine lawmakers during a briefing Tuesday that the department has not abandoned all plans for legal action. 

Instead of suing over the rules directly, he said, the department is planning to intervene in an existing case against the National Marine Fisheries Service that was filed by a group of environmentalists who contend the agency hasn’t done enough to protect the critically endangered whales.

The department has hired Linda Larson, a lawyer specializing in environmental and natural resource law, from Nossaman LLP in Seattle. According to Keliher, Gov. Janet Mills has already committed to covering legal fees in what he said will be a “very expensive process.”

“That’ll probably be the tip of the iceberg, depending on the direction that this case goes, but we are going to be actively involved in that federal case assuming our motion to intervene will be granted,” he said.

RULES SHOCK INDUSTRY

Last month, The National Oceanic and Atmospheric Administration released a new set of rules for New England’s lobster fishery aimed at reducing the risk to critically endangered North Atlantic right whales and other whale species. Scientists believe there are only about 360 right whales left worldwide, so the species has become a flashpoint among environmentalists, federal regulators and fishermen because of the whales’ tendency to become entangled in fishing gear.

The goal is to reduce the risk to the whales by at least 60 percent.

The new rules will require lobstermen to string more traps on a single rope and to use weaker ropes to allow entangled whales to break free, and 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. Lobster and crab fishermen also will have to add state-specific color markings to gear, a requirement officials believed the state had already met in 2020. However, the final rule included additional changes to the state’s gear-marking systems, blindsiding government and industry officials, as well as fishermen. 

The gear modifications required by the rule will go into effect May 1, 2022, which is the start of the American lobster/Jonah crab fishing year. The changes to the seasonally restricted areas are expected to go into effect a month after they are entered into the Federal Registry, which is expected to happen soon.

Many industry officials worry that the changes will cause undue harm to the lobster fishery, which is the backbone of Maine’s fishing industry. The new rules were criticized by all sides in the debate – conservation groups pushing for stronger safeguards for whales, lobstermen who feel wrongly targeted and Maine political leaders who are fiercely protective of the state’s iconic lobster industry. 

Keliher told the Legislature’s Marine Resources Committee on Tuesday that federal agencies are given “extreme deference” in federal court, and that the department’s legal counsel has said they “really don’t have a case as it pertains to these existing rules.”

ENVIRONMENTALISTS PREVAIL

Conservation groups originally filed suit against the National Marine Fisheries Service in federal court in Washington, D.C., in early 2018, alleging that the federal government failed to manage the fishing industry by not enforcing the Endangered Species Act and the Marine Mammal Protection Act. 

The civil suit, filed by the Center for Biological Diversity, Defenders of Wildlife and the Humane Society of the United States, criticized the Fisheries Service for supporting a 2014 biological opinion that found commercial fisheries are likely to kill or seriously injure more than three North Atlantic right whales a year, but also led the federal agency to conclude “that the fishery is not likely to jeopardize the continued existence of North Atlantic right whales.”

U.S. District Judge James Boasberg sided with the environmental groups, ruling that the Fisheries Service violated the Endangered Species Act by not properly reporting the lobster industry’s harmful impacts on right whales.

Boasberg said the agency would have to vacate its 2014 conclusion that lobstering could continue, because it knew right whales were dying at more than three times the rate sustainable for a species that had dwindled to no more than 400 whales.

Per court order, the agency had until May 31 of this year to finalize a new biological opinion – a requirement under the Endangered Species Act that becomes the basis for rule-making surrounding the specific species.

The new biological opinion was released May 27. The document aims to reduce the risk to whales by 98 percent over the next 10 years.

In it, federal officials found that, provided they meet the reduction targets in the implementation framework, none of the 10 fisheries included in the document, including the lobster fishery, were “likely to jeopardize the continued existence of the North Atlantic right whales.”

The biological opinion creates a four-phased approach to all but eliminate whale deaths in federally managed fishing areas, the first of which is the “take reduction plan,” or the new set of rules announced last month. 

The second and third phases would include additional risk-reduction measures in 2025 and 2030.

SEEKING TO INTERVENE

Keliher and other industry officials have said the 98 percent risk-reduction target over the span of a decade would require a complete reinvention of the state’s lobster fishery, but environmentalists argue that the right whales don’t have 10 years to wait, and that the agency needs to take more drastic action now.

On Friday, the Center for Biological Diversity, Conservation Law Foundation and Defenders of Wildlife filed an updated lawsuit against the Fisheries Service for failing to prevent the whales from getting tangled up and killed in lobster gear, the Conservation Law Foundation said in a news release.

The lawsuit, which amends and supplements the 2018 lawsuit, alleges that the new biological opinion and the new rules violate the Marine Mammal Protection Act, the Endangered Species Act and Administrative Procedure Act.

“For decades, the agency has failed to act or even follow the law, driving North Atlantic right whales toward extinction,” Kristen Monsell, oceans legal director at the Center for Biological Diversity, said in a statement. “We’ve already waited far too long to protect North Atlantic right whales from deadly entanglements. It’s time to get all vertical fishing lines out of right whale habitat and convert to on-demand ropeless fishing gear.”

It’s this lawsuit that Keliher hopes the Department of Marine Resources will be able to join as an intervenor to help protect the fishery from even more restrictive rules in the future. Keliher said the timeline for when the state may file for intervenor status is unclear. The Maine Lobstermen’s Association also is an intervenor in the case.

Jeff Nichols, spokesperson for the Maine Department of Marine Resources, said in an email Tuesday that the intervention is the “best legal strategy right now” and will “ensure we have a voice in the legal proceedings.”

“Our goal is to protect Maine’s economically valuable lobster fishery and industry’s cultural heritage while simultaneously finding a balance in the effort to protect right whales,” he said.

Nichols said Mills has authorized the use of $230,000 from the Governor’s Contingent Account to retain the use of outside counsel, with the approval of the state Attorney General’s Office.