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We don’t mean to sound like a broken record, but a federal court ruling last week reiterated a point that we’ve been making for years — more complete data are needed for federal regulators to justify stringent regulations on Maine’s lobster fishing industry.
On Friday, a ruling from the U.S. Court of Appeals rejected the plan, called a biological opinion, that undergirded recent rules from the National Marine Fisheries Service aimed at making lobster and crab fishing safer for endangered North Atlantic right whales.
The court ruled that, in the absence of definitive information that right whales are being trapped in lobster and crab fishing gear, the agency couldn’t use a worst-case scenario to justify a suite of new rules on the two fisheries. The agency had called for changes in fishing gear and put parts of the ocean in New England off limits to lobster and crab fishing for several months a year.
Technically, the rules remain in place as the appeals court remanded the case back to a district court to vacate the biological opinion. But the practical impact is that fisheries service will likely have to go back to the drawing board to write a new biological opinion and any rules that stem from it.
In addition to the lawsuit, filed by lobster and crab fishing groups and the state of Maine, Congress had already granted the fisheries a six-year reprieve from new, stricter regulations through a provision added to the federal omnibus bill passed in December.
All of this means that federal regulators have a lot more time to assess the interaction of right whales and lobster and crab fishing gear.
This assessment has long been needed to close the yawning data gap between regulators who say the fisheries pose a mortal threat to whales and industry representatives who say that a right whale hasn’t been entangled in lobster gear known to come from Maine in nearly 20 years.
As noted in the appeals court decision, whale entanglement data are terribly incomplete. For example, the sources of gear that entangle right whales are often unknown. Often, it is not even clear if the gear was used in the U.S. or Canada. This has been the case for years.
“In this case, we decide whether, in a biological opinion, the service must, or even may, when faced with uncertainty, give the ‘benefit of the doubt’ to an endangered species by relying upon worst-case scenarios or pessimistic assumptions. We hold it may not,” Douglas Ginsburg, the court’s senior judge, wrote in the opinion. “The [Endangered Species Act] and the implementing regulations call for an empirical judgment about what is ‘likely.’ The service’s role as an expert is undermined, not furthered, when it distorts that scientific judgment by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.”
This emphasis on the worst-case scenario could result in “unnecessary economic dislocation,” Ginsburg wrote, echoing a point made by the lobster industry, Gov. Janet Mills and the state’s congressional delegation, which have long been critical of the fisheries service and its rules.
“The result may be great physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations,” the court said.
It is clear that right whales are in danger. But without better data, the source of that danger is less clear. One aspect of the biological opinion that should not be scrapped was a belated emphasis on collecting more data on the interactions of whales and lobster and crab fishing gear.
Given this court ruling, and last year’s congressional action, both federal regulators and the lobster industry have time to gather more complete data to either demonstrate or dispel the dangers posed by fishing gear to right whales.
With this information in hand, better regulations can be written to protect both right whales and lobster and crab fishermen.
