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First Circuit hands win to endangered whales

A rule protecting endangered whales on the coast of Maine can go forward, dealing a blow to lobster fishermen.

BOSTON (CN) — Fishermen along the Maine coast have to reel in their lines for a few months in order to protect endangered whales, the First Circuit ruled Tuesday.

Last year, the National Marine Fisheries Service issued a rule that would close down a 967-square-mile strip of ocean off the coast of Maine from October to January to fisherman, specifically to stop the use of buoy lines.

The effort hopes to protect endangered North Atlantic right whales who travel through the area during that time and often get entangled in lobster-trap lines resulting in injury or even death.

The fishermen, who most commonly use the buoy lines, sued over the rule, arguing it would hurt their businesses to be shut down that long.

In October, a federal judge granted a temporary restraining order to stop the regulation from moving forward, saying the government failed to prove that the whales were really in danger.

The agency appealed and the First Circuit blocked the restraining order while the appeal was pending, and appeared inclined to uphold that decision during oral arguments in May.

Indeed the appeals court upheld their original decision and vacated the restraining order, giving the green light to put the regulation in place and shut down claims from the fishermen that the agency did not have all the information before imposing the seasonal closure.

“The agency explicitly acknowledged that the Gulf of Maine ‘is slightly less important for right whales in recent years than previously’, but it nevertheless concluded that this area ‘remains a potential hotspot for right whales during late fall and early winter months,’” U.S. Circuit Judge William Kayatta wrote for the majority.

Entanglement in trap lines is the leading cause of death for these whales, and an uptick in deaths in 2017 jump-started the agency’s efforts to find a way to slow the path to extinction.

Kayatta, an Obama appointee, acknowledged that the court does not doubt that there may be hardship on the fishermen because of this regulation, he noted that congress orders them to tip the scale to protect endangered species.

“We also do not doubt, though, that the loss of even one right whale caught in a thicket of trap line would be irreversible,” said Kayatta. “Although this does not mean the balance will always come out on the side of an endangered marine mammal, it does leave plaintiffs beating against the tide, with no more success than they had before.”

Similar suits are playing out in federal court in the District of Columbia questioning how the agency uses biological opinions to create these rules. 

U.S. Circuit Judges Sandra Lynch, a Clinton appointee, and Gustavo Gelpi, a Biden appointee, joined Kayatta on the ruling.

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