The BDN Opinion section operates independently and does not set newsroom policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
Susan Young is the Bangor Daily News opinion editor.
Full disclosure: I am not a lawyer (although I did work as a paralegal for a law firm in Washington, D.C., for several years).
That said, some arguments are so bogus that they are easy to spot. The push for a new, state-led lawsuit on behalf of Maine’s lobster industry, which is battling regulations aimed at protecting endangered whales, is such a case.
Former Gov. Paul LePage, hoping to win his old job back by defeating Gov. Janet Mills in November, has pledged to quickly file a lawsuit against the Biden administration to protect Maine’s lobster industry if he is elected.
On a conservative talk radio show last week, LePage, after mocking Maine Attorney General Aaron Frey, erroneously suggested that the AG had merely written letters rather than taking legal action in support of Maine’s lobster industry.
At a rally last week in Portland, lobstermen called on the state to file a new lawsuit against the federal government to protect them from further regulations to protect endangered North American right whales.
U.S. Rep. Jared Golden also joined this call, saying the state needed to “lead the charge.”
And 131 Republican candidates for the state Legislature, many of them current lawmakers, pledged to vote for a different attorney general who would sue the federal government on behalf of Maine lobstermen.
Rallying around Maine’s lobstermen is currently politically popular and pledging to fight harder for them is nearly universal, but calling for another lawsuit against the federal government, led by Maine, is misguided and misrepresents the legal action already taken by the state.
Maine is already deeply involved in two lawsuits that aim to toss out or weaken regulations on the lobster industry. One, filed by the Maine Lobstermen’s Association, challenges recent rules as being too strict. The other, filed by the Center for Biological Diversity, challenges the rules for being too lenient.
True, the lawsuits don’t say “Maine v. National Oceanic and Atmospheric Administration” or “Maine v. National Marine Fisheries Service,” but that hardly matters.
“There is no functional difference between being an intervenor and a plaintiff,” Frey, Maine’s attorney general, explained to me.
As an intervenor in these lawsuits, on the side of lobstering, the state can take the same actions as the plaintiffs whose names appear in the name of the lawsuit. The state’s attorneys are at the table with the other parties, are in front of the same judge, can file briefs, introduce and challenge evidence, and ask questions, just as the named plaintiffs can.
If the state were to file another lawsuit challenging existing federal fisheries regulations, it would likely be consolidated with one of the existing cases where Maine is already an intervenor. So filing such a suit would be a waste of money and time, and would likely divert resources from the ongoing litigation.
And a case that challenges regulations that do not even exist yet, as some lobstermen and politicians have called for, would likely be quickly tossed out by a judge because there is no action to sue over yet.
“If there is something else here to do to advance our interests, I’d do it,” Frey said.
Because of the high stakes of the litigation and the complexity of federal rules, the AG authorized the hiring of specialized legal counsel to represent the state’s interests. The Legislature, at Mills’ urging, set aside $3 million for this legal work and the AG has already authorized spending nearly $1 million on outside counsel for the two lawsuits. That doesn’t count the work done within the AG’s office, the governor’s office and other state agencies regarding these court challenges.
On Tuesday, a federal appeals court granted a motion, which was supported by the Maine Department of Marine Resources in its court filings, to expedite proceedings in the Maine Lobstermen’s Association case. The association is appealing a federal judge’s order allowing federal rules, that include a large seasonal closed area, to go into effect.
The case is now one step away from the Supreme Court, which is another reason to not begin new litigation that could take years to reach the high court.
In the Center for Biological Diversity case, the same federal judge said that rules put in place by NMFS last year were not protective enough of right whales. He asked the parties, including the state of Maine, to recommend different rules. That work is ongoing, with Maine clearly at the table, amplifying the voices of lobstermen and advocating for rules that are based on better science to protect whales without undue burden on the industry.
This is where Maine needs to focus its attention, not on filing new, unnecessary lawsuits.
