Federal appeals court sides with Maine lobstermen against Biden administration

 June 19, 2023

A federal appeals court has sided with Maine lobstermen who sued the Biden administration over fishing restrictions that they called crippling to their industry. 

The National Marine Fisheries Service (NMFS) said the regulations would protect the North American right whale, an endangered species with fewer than 400 living members left.

The fishermen argued the regulations were based on unfounded speculation of harm to the whales and would force lobstermen to cut the number of traps they use in half.

Biden slapped down

The government argued the Endangered Species Act required them to give the whales "the benefit of the doubt" and base conservation policy on "worst case scenarios."

Judge Douglas Ginsburg wrote the opinion for a three-judge panel of the U.S. Court of Appeals for the District of Columbia. He agreed with the fishermen, finding the government's "egregious" reasoning too speculative and out of line with the law, which directs the government to weigh "likely" scenarios.

There have been no documented entanglements of right whales off of Maine since 2004, the fishermen argued. There were just two confirmed deaths due to entanglements in the U.S. between 2010 and 2018, the judge noted.

The judge acknowledged that "most" right whales are killed due to human interaction, but he said the government's "pessimistic" estimate of 46 deaths per decade is not realistic based on the known data.

"The statute is focused upon 'likely' outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic," he wrote.

Judge's decision

He also said the government's policy had failed to consider other "worst-case scenarios," namely, for the fishermen.

Congress "did not want economic activity stopped in its tracks whenever complete data was lacking," and if they did, they would have said so, the judge said.

"We may reasonably expect the Congress at least to speak, not to be silent, when it delegates this power to destroy," he wrote.

Lobster fishers celebrate win

Dustin Delano, chief operating officer of the New England Fishermen’s Stewardship Association (NEFSA), said he has "goosebumps" because the industry has been struggling.

“So to have some positive news, and to get a win for the fishing industry. You know, it gives me goosebumps, because it’s not something that we’ve experienced in quite a while," he said.

Maine, of course, is practically synonymous with lobstering. The state's Democratic governor, Janet Mills, applauded the court for rejecting the government's "flawed" argument.

"We are pleased the court has acknowledged that the data set NOAA has been using to unfairly target Maine’s fishery is flawed," she said.

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