Who says you can’t take on the federal government and win?
Lobster fishermen in nearby Maine have proven that it is still possible to take on regulators and come out on top — even if it involves something as contentious and controversial as North Atlantic right whales.
Fishermen in this region are no strangers to ever-increasing regulations surrounding endangered right whales. Over the last few years, snow crab and lobster harvesters have endured numerous fishing closures due to the presence of the cetaceans.
South of the border, our fishing brethren have been in the courts the last few years fighting restrictions being imposed by the U.S. federal government. And at long last, they have finally had some success.
In late June, the U.S. District Court of Appeals for the District of Columbia ruled in favour of Maine lobstermen in ordering the National Marine Fisheries Service (NMFS) to drop a 2021 biological opinion regarding North Atlantic right whales. The NMFS, an arm of the U.S. federal government, was trying to implement more stringent rules for Maine lobster fishing in order to protect the whales. These restrictions included radical season reductions and gear changes.
The court ruled that the NMFS went too far in its analysis of the lobster and Jonah crab industries’ potential harm to the critically endangered North Atlantic right whale. The judges noted that the government department “overstepped its authority when it used worst-case scenarios and pessimistic assumptions in its crafting of its biological opinion, which required it to create new rules, which required lobster fishermen to switch to new gear. The result may be great physical and human capital destroyed and thousands of jobs lost, with all the degradation that attends such dislocations.”
With the support of the State of Maine, the fishermen, represented by the Maine Lobstermen’s Association, appealed their case to the U.S. Court of Appeals after losing a decision in a lower court.
Maine Lobstermen’s Association Executive Director Patrice McCarron was obviously relieved with the ruling.
“When the Maine Lobstermen’s Association made the decision to sue the federal government, we knew it wouldn’t be easy, but we refused to go down without a fight. The decision by the U.S. Court of Appeals is an overwhelming victory for lobstering families and the communities that rely on this industry and it reaffirms what the MLA has been saying all along — the federal government does not have a blank check to use worst-case scenarios and disregard actual data in its regulation of the Maine lobster fishery.”
The appeals court ruling means that the federal government might have to go back to the drawing board to take another attempt at crafting new rules to protect the whales.
The legal ruling was quite methodical in siding with the lobster harvesters.
U.S. Senior Circuit Judge Douglas Ginsburg cited a 1978 case where the Supreme Court ordered work to be halted on an $100-million dam project, after ruling the Endangered Species Act (ESA) could not be used to require endless investigation into impacts on endangered species without showing actual proof of harm.
In 1979, the U.S. Congress “lightened the load to avoid paralysis” by changing some of the language in the ESA from “do not jeopardize” to “is not likely to jeopardize,” and added clauses that required any agency to use the best scientific and commercial data available at the time, not the best data possible, the ruling stated.
“This history shows the Congress did not want economic activity stopped in its tracks whenever complete data was lacking,” the court wrote. “To say uncertainty is a reason to veto a federal action is to say that many valuable activities must cease, even if the risk of jeopardy is not ‘likely,’ but speculative.”
The court added that the NMFS biological opinion was “capricious” and “contrary to law.”
“The service’s legal reasoning was not just wrong; it was egregiously wrong” in that it based some of its legal arguments on legislative history rather than statute, Ginsburg wrote.
“As any high school civics student should know, legislators vote on and the president signs bills, not their legislative history,” Ginsburg wrote.
“Statutory text and structure do not authorize [NMFS] to ‘generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species whenever it faces a plausible range of values or competing analytical approaches,” the court wrote. “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.”
Assuming a worst-case scenario in all its decision-making is fraught with problems, as “worst-case scenarios lie on all sides,” Ginsburg wrote.
This right whale saga has been snaking its way through the U.S. judicial system for years.
The Center for Biological Diversity first sued the National Oceanic and Atmospheric Administration (NOAA) in 2018 for failing to protect right whales.
The lawsuit accused the NMFS and NOAA Fisheries of overlooking the impacts of the lobster fishery. In April 2020, the group won the ruling, which concluded that NOAA’s previous biological opinion on the lobster fishery violated the ESA.
As a result of the original ruling, the Monterey Bay Aquarium’s influential Seafood Watch program downgraded the fishery and gave it a red or “avoid” rating. Further, Maine’s lobster fishery lost its Marine Stewardship Council (MSC) certification.
So, what are the takeaways from this ruling for harvesters in this neck of the woods? Does this give new hope to fishery advocacy groups here in Atlantic Canada that are also facing restrictions and policy changes related to the presence of right whales in our waters? Is there a possible fishermen’s alliance that be formed between our two countries that can help take a unified approach to bureaucratic decisions?
If nothing else, it proves to everyone that sometimes, albeit rarely, the underdog can take on something as colossal as a federal government and actually win. There is a real lesson to be learned here.
