DMR briefs legislature on impact of new NOAA lobster rules and appeal options
On September 14, the Maine Legislature’s Marine Resources Committee met and discussed the impact of new rules recently released by the National Oceanic and Atmospheric Administration (NOAA) on the Maine lobster industry, as well as the state’s legal options to appeal the rules.
On August 31, NOAA announced a new final rule amending its Atlantic Large Whale Take Reduction Plan, which attempts to reduce the number of injuries and deaths of North Atlantic right whales, listed as endangered under the Endangered Species Act.
The new rules not only close nearly 1,000 square miles to the lobster fishery between October and January, a time of year when lobster prices are at their highest, but change the type of equipment lobster boats can use. .
At the September 14 meeting, Megan Ware, who works in the Department of External Affairs of the Ministry of Marine Resources (DMR), described the three elements of the rule changes. She also detailed the proposals DMR had made for inclusion in the rule, as well as several items included in the final rule that took the agency by surprise, as they were not part of the rule proposed by NOAA.
Of the three elements of the new rule, the closure of Lobster Management Zone 1 (LMA 1) in the Gulf of Maine from October to January received the most media attention. It impacts waters outside 12 miles of shore in Areas C, D, and E. The closure will take effect 30 days after the final rule is posted in the Federal Registry.
According to Ware, the closures were part of the rule proposed by NOAA. DMR suggested several changes, including a triggered approach for the closure of fishing waters. According to DMR’s proposal, sighting a right whale in one year would trigger the closure of those waters the following year. DMR also proposed that Zone E not be included in the closure of LMA 1 in January and December. None of these suggestions were adopted as part of the NOAA Final Rule.
Cordless fishing in AML 1 will be permitted during seasonal closures for holders of an exempt fishing license. Cordless fishing is an experimental fishing technology and applying for a license, which allows lobsters to fish without a vertical buoy line, requires a license application from NOAA, a special license application from the DMR, and compliance with a set of other criteria. This process is described in both the NOAA Final Rule and the Environmental Impact Final Report.
Another item of the new rule ware discussed relates to changes to the trawling regulations, which reduce the number of lines in the water by allowing more traps to be added to a line and weak points, which are points. breakage of 1,700 pounds. on a line that allows a tangled whale to break free.
According to Ware, last summer, the DMR came up with combinations for trawling and weak spots that worked for the state’s fishing regions. Ware said most of them were accepted, but not outside of 12 miles from shore. According to Ware, anglers working more than 12 miles from shore must use a 25-trap trawl with a weak point one-third of the line. These changes will take effect in May 2022.
The third element of the NOAA rule change concerns the marking of gear. According to Ware, in September 2020, DMR created a state-specific purple gear mark for Maine. In addition to the purple mark, DMR also implemented a green mark that distinguished between exempt and non-exempt water. The tagging system was designed to help provide specific information on the location of a whale entanglement, if any.
According to Ware, this system was incorporated into the NOAA Final Rule, but NOAA changed the purpose of the green marking system. He increased the number of green markers from one to four one foot marks across a line. He also changed the purpose of tagging. Instead of distinguishing between exempt and non-exempt waters, NOAA uses the marks to distinguish between state and federal waters.
According to Ware, this creates a challenge for fishermen because it is more difficult to move gear between state and federal waters while following the law. Ware said changing the tagging system could mean fishermen have to move two sets of lines instead of one.
DMR is studying the costs that could result from the evolution of the new rules for marking machinery. According to Ware, DMR had not forecast the costs, which were not factored into the NOAA Final Rule or the final Environmental Impact Statement because the changes to the marking system were not considered. not included in the proposed rule.
DMR Commissioner Patrick Keliher also attended the Marine Resources Committee meeting, answered questions from committee members and spoke about the legal measures available to the state to appeal the rule.
Among the topics discussed by Keliher was the feasibility of cordless fishing. Cordless fishing involves a GPS-enabled trap with a wireless modem that can be recalled from the ocean floor by electronic means. Cordless fishing is still a long way from implementation, Keliher said, with recovery success rates of around 75% in ongoing research.
In addition to retrieval issues, Keliher also noted that fishing without a rope presents issues with retrieving traps for inspections and allows anglers to know where another angler’s gear is placed. Keliher said that even if the technology behind cordless fishing were to be developed within a month, fishermen would still face a hurdle in obtaining approval for an experimental fishing license from the Grand Atlantic Regional Fisheries Bureau. Keliher noted that DMR is working on the development of new technologies with the federal government.
Keliher also spoke about NOAA’s estimates for how many fishermen affected by rule changes and how much income they are expected to lose.
NOAA estimated the changes would impact 60 fishermen at a cost of 5% to 10% of their annual lobster-catching income. Representative William Faulkingham (R-Winter Harbor), a lobster fisherman himself, noted that these estimates appeared extremely low, an assessment with which the commissioner agreed.
According to Ware, the NOAA estimates were based on the 120 vessels fishing within 12 miles of shore. Since the closure of LMA 1 affects half of the fishery, NOAA estimated that half of the fishermen in that area would be affected. According to Ware, the NOAA estimate of the decrease in capture income is based on the assumption that the gear will be moved elsewhere, rather than being taken out of the water in order to be modified to comply. to the new rules. Ware also said NOAA assumed there were benefits to forcing fishermen closer to shore, such as fuel savings, and they factored those into their estimates.
Keliher says DMR has raised concerns about NOAA’s financial estimates throughout the process, but the Endangered Species Act does not take economic impacts into account. He also estimated that more than 150 fishermen will be affected by the new rules and said the costs of lost income vary on an individual basis from $ 15,000 to $ 30,000.
Representative Joyce McCreight (D-Harpswell) also raised concerns about the potential for conflict between displaced fishermen who will have to move their gear into waters already exploited by others. Keliher said the conflict is “guaranteed to happen” and noted that this is the area that the Maine Marine Patrol will spend most of its time on as the speed changes.
Keliher also answered several questions about the legal actions DMR will take against the federal government over the new NOAA rules.
Keliher noted that the federal court system will likely give federal agencies extreme deference, and that DMR had received legal advice advising the agency that it did not really have a record of the existing rules.
Keliher mentioned that DMR was working with Governor Janet Mills and Attorney General Aaron Frey, who both publicly declared their opposition to the final rule and were given permission to hire outside legal counsel. Although Keliher was not sure when, he said DMR had reached an agreement with Seattle law firm Nossamen LLP to file motions for intervention in a lawsuit currently before the 5th Circuit District Court in Washington, DC According to Keliher, Mills incurred $ 250,000 towards legal fees.
The lawsuit was originally brought against the National Marine Fisheries Service (NMFS) Wilbur Ross, who served as Secretary of Commerce at the time, and the Massachusetts’ Lobstermen’s Association by a coalition of environmental groups. In 2018.
They claimed that the 2014 NMFS Biological Advisory did not go far enough to protect right whales and that allowing fisheries to continue to operate violated conservation law. Essentially, the agencies argued that the 10-year window for harm reduction contained in the biological advisory did not set the rate of risk reduction high enough to halt the decline in the right whale population.
A federal court dismissed the NMFS ‘motion for a stay of judgment in 2019. In 2020, the court ruled that the biological opinion was invalid and that a new opinion had to be produced. The NMFS produced a new organic advisory in May of this year. On September 9, the same groups filed additional complaints against the NMFS, Commerce Secretary Gina Raimondo and the Maine Lobsterman’s Association, asking for an immediate injunction for more protections. According to Keliher, DMR learned last Friday that the judge in charge of the case would allow the prosecution of the additional complaint to the existing trial.
Keliher said DMR feared the outcome of the lawsuit could have more extreme consequences for Maine’s lobster fishing industry than NOAA’s new rule. He also noted that DMR had discussed with Commerce Secretary Gina Raimondo the economic impact of the NOAA final rule.
The threats posed by Canada to the right whale were also discussed. As Keliher pointed out, the NMFS Biological Opinion noted that even if Maine is 100% successful in taking action to protect right whales, whales will continue to disappear if they continue to be injured in Canada. Keliher also said he has had conversations with the head of NOAA, who has yet to have a meeting with the Canadian government, but has agreed to raise the issue of including state officials in Canadian affairs.
Keliher also said the NOAA chief views these conversations as a government-to-government issue. He said he disagreed and continued to press the issue.