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Federal court hears arguments from Maine lobstermen appealing right whale regulations

A lobsterman tosses a buoy overboard while setting his traps in Portland harbor, Thursday, July 8, 2021, in Portland, Maine. Lobster prices have been higher than average as the industry rebounds from the COVID-19 pandemic.
Robert F. Bukaty
/
AP
A lobsterman tosses a buoy overboard while setting his traps in Portland harbor, Thursday, July 8, 2021, in Portland, Maine. Lobster prices have been higher than average as the industry rebounds from the COVID-19 pandemic.

A federal appeals court heard arguments Friday from the Maine Lobstermen's Association, which is challenging a government plan to regulate the fishery and conserve endangered right whales.

The Maine Lobstermen's Association had promised to take its latest appeal of federal fishing regulations all the way to the U.S. Supreme Court, if necessary.

But lobstermen hope they'll avoid that prospect, especially with Paul Clement, an attorney with more than 100 past Supreme Court appearances, representing Maine.

In his arguments Friday before the U.S. Court of Appeals in Washington, Clement said the National Marine Fisheries Service made procedural errors in issuing a series of recommendations intended to protect right whales and regulate the lobster fishery.

But he also said that the agency didn't follow its own rules under the Endangered Species Act, and instead relied on worst-case scenarios in regulating the lobster fishery and conserving endangered North Atlantic right whales.

"The best available scientific data if you ask me is that in 2016, in 2017 and in 2018, every single documented entanglement was a Canadian one," said Clement, who served as U.S. Solicitor General during the George W. Bush administration. "It wasn't 80-to-20%. For those three years, it was 100% to zero. And yet why was that data completely ignored?"

The federal fisheries agency cherry-picked other datasets and used them to make regulatory decisions in favor of the right whale species, Clement said. And he contends the government ignored the economic implications of its decisions on an iconic Maine industry.

The federal government disagrees. Sommer Engels, an attorney representing the National Marine Fisheries Service, said the agency didn't rely exclusively on worse-case scenarios. And with an estimated 340 right whales remaining, available data on the whales' whereabouts and their entanglements is often limited.

"Although there were more observed entanglements that could be attributed to Canada, most observed data is not representative," Engels said. "The whales move. Lots of gear is unmarked. The fact that some have been found in Canada is not representative of the larger circumstance."

The federal fisheries agency also argues that the lobstermen's case is moot, because Congress included a six-year pause on new fishing regulations in this year's federal spending bill.

But Maine lobstermen are still dealing with fishing regulations that were implemented before the most recent spending bill became law, Clement said, and the industry is seeking relief.

The Maine Department of Marine Resources, the Massachusetts Lobstermen's Association and Maine Lobstering Union have intervened in support of the appellants. Three conservation groups have intervened on behalf of the federal government.

Federal judges did not indicate a timeline for their ruling.