Five Maine lobstermen have filed a lawsuit against the Maine Department of Marine Resources (DMR) over recently enacted rules requiring all Maine lobstermen with federal lobster fishing permits to install 24-hour electronic tracking devices on their vessels.
The rule went into force on 15 December and stems from a higher-level decision made by the Atlantic States Marine Fisheries Commission (ASMFC) calling for individual state departments to create rules establishing around-the-clock tracking requirements on both American lobster fishing vessels and Jonah crab fishing vessels. One of the main stated goals of the plan is to help reduce the risk of lobster gear entangling critically endangered North Atlantic right whales.
The five lobstermen – Frank Thompson, Joel Strout, Jason Lord, Christopher Smith, and Jack Cunningham – allege that the new rules violate both the fourth and 14th amendments of the U.S. constitution.
“The Plaintiffs contend that minute-by-minute surveillance of Maine’s federally licensed lobster fleet is unconstitutional, unwarranted, and unfair to Maine lobstermen, who have proven through the actions of generations of lobstering families that they are good stewards of the ocean ecosystems essential to their livelihoods,” a release from attorneys Thimi Mini and Alfred Frawley, who are representing the fishermen, said.
The lawsuit also claimed the data is being collected for purposes related to supporting industries other than lobster fishing. In the ASMFC’s addendum that created the new requirements, one of the purposes of the data was to “support the development of offshore renewable energy,” according to the lawsuit.
“The Plaintiffs further contend that the collection of such information, without any assurance that it will remain protected from further dissemination, including for the benefit of other ‘offshore’ industry interests unrelated to lobster fishing, is improper and a manifest violation of their constitutionally protected privacy rights,” the release said.
Maine DMR Commissioner Patrick Keliher said the lawsuit is counterproductive for an industry that has faced heightened scrutiny over its impacts to right whales.
"It’s ironic that a few members of an industry which has voiced a strong opinion that Maine needs to do more to protect this fishery are now resisting efforts to gather the data necessary to help defend their interests in the long run. I believe their arguments have no merit,” Keliher said. “Data from the trackers is a critical component of the Atlantic states’ effort to ensure that the lobster industry is not burdened with management decisions based on assumptions derived from insufficient data."
Some lobstermen, in addition to those filing the lawsuit, appear to disagree, as evidenced by a petition calling for support of the lawsuit.
“These five are fighting to protect ALL Maine Lobstermen,” the petition states. “It has been said that ‘only a few fishermen’ disagree with the Black Box requirement. By signing this petition, you will be standing with these men and women – opposing this restriction and fighting to save this iconic industry.”
Fishermen fighting over observation of their industry is nothing new to the U.S.
In February, an appeals court ruled in favor of Gulf of Mexico charter boat operators who argued that 24/7 GPS monitoring of their vessels and electronic reporting of every trip violated their privacy.
That ruling could influence more court cases on the issue. In May 2023, the Supreme Court also agreed to hear Loper Bright Enterprises v. Raimondo, challenging NOAA’s authority to force fishermen to employ at-sea monitors. Then on 13 October 2023, the U.S. Supreme Court announced it would take up the case of Relentless, Inc. v. the U.S. Department of Commerce in conjunction with the Loper Bright Enerprises v. Raimondo case. That lawsuit stems from Atlantic herring fishermen arguing the government requiring them to pay for at-sea monitors on their vessels oversteps NOAA’s regulatory authority.
The U.S. First Circuit Court of Appeals ruled in favor of the Department of Commerce in both lawsuits, citing the Chevron deference – a judicial precedent giving regulatory agencies broad authority to act without specific Congressional directions.
For the lobster industry, the core reason behind the new monitoring regulations – impacts to right whales – is also not a new topic for lawsuits, and the whales have already been the subject of multiple lawsuits for the Maine lobster fishery and environmentalists alike.
In April 2020, a federal judge ruled that the Maine lobster fishery violates the Endangered Species Act, a ruling stemming from a lawsuit filed by the Center for Biological Diversity, the Conservation Law Foundation, and several other environmental groups.
In April 2021, NOAA Fisheries announced a new set of regulations intended to protect North Atlantic right whales from entanglement-related incidents in a bid to meet the requirements of the Endangered Species Act – rules over which the lobster industry sued in September 2021 claiming they went too far.
As that lawsuit made its way through the courts, a federal judge, upon reviewing the new requirements from NOAA, ruled that the regulations the lobster industry deemed onerous still didn’t go far enough to protect whales but also granted the industry some reprieves.
The lobster industry was then granted an even greater reprieve by a rider on the U.S. Senate’s omnibus funding budget, which granted U.S. lobster fishermen six more years before stricter gear standards and harvest rules would undergo implementation. The move was applauded by Maine’s congressional delegation as a key strategy to avert a complete shutdown of the lobster fishery.
In the background, the lobster industry’s lawsuit was still ongoing, and in June 2023, the U.S. District Court of Appeals for the District of Columbia granted an “overwhelming victory” to the lobster industry, finding the original biological opinion that the first April 2020 court ruling cited went too far in its analysis of the lobster and Jonah crab fisheries’ potential harm to right whales.
As it stands now, the lobster fishery is still allowed to fish but has withdrawn from its Marine Stewardship Council certification after the certification was suspended in 2022. NOAA, meanwhile, has been tasked with gathering more data on the fishery – a task with which the Maine DMR will assist through a recent USD 17.2 million (EUR 15.7 million) grant from NOAA.
That grant, the Maine DMR said in a release, will allow it to improve data collection on North Atlantic right whales.
“Maine’s lobster industry has a long and proud tradition of responsible harvesting practices and good environmental stewardship, including significant investments by lobstermen in protecting right whales,” Maine Governor Janet Mills said. “These funds will ensure that federal regulators can no longer burden this vital industry with management decisions based on poor data that threaten the livelihoods of thousands of Mainers. I thank Maine’s Congressional Delegation for its work to secure this important funding.”
The funds will go toward performing acoustic monitoring on whales to provide an improved assessment of what risks lobster gear poses to the endangered species.
“The goal of this research is to collect data that tells us what is happening in the Gulf of Maine so we can be protective of whales in a way that also doesn’t devastate Maine’s critically important lobster industry,” Keliher said.
The new trackers, he added, are part of the overall data-collection picture and will allow NOAA to determine how lobster fishing and the safety of whales might coincide.
“Having better data on whale distribution in addition to gear location and configuration will vastly improve the ability of the federal government to focus its efforts on the areas of greatest risk,” Keliher said. “DMR’s approach is to not use assumptions but, rather, the best available data so NOAA understands that the Maine lobster fishery is not the threat it makes it out to be. This will allow [NOAA] to develop more targeted management measures, which will reduce the burden on this industry.”
Photo courtesy of mark stephens photography
