BOSTON (CN) — Arguing before a skeptical First Circuit, an attorney representing a group of Maine lobster fishermen said a federal rule designed to protect the endangered North Atlantic right whale targets a portion of the ocean where there are no right whales.
“We need to figure out where the whales are and target those areas,” said attorney Alfred Frawley IV at oral arguments Tuesday before the federal appeals court in Boston.
But the First Circuit appeared to give Frawley a frosty reception, saying at one point that the record lacked evidence that the seasonal closure would lead to lost lobster boats and jobs across the coast of Maine.
The National Marine Fisheries Service issued the rule at issue in 2021, closing a 967-square-mile strip of ocean off the coast of Maine to the use of vertical line buoys, a method of fishing most common with lobster fishermen, between the months of October and January.
Regulators say the move is meant to protect the endangered North Atlantic right whale, whose population is hovering at about 336. One of the biggest threats to the animal is entanglements, with some of the most common entanglements involving lines and buoys.
Though the fishermen have secured a temporary restraining order from a federal judge, a three-judge panel of the First Circuit unanimously blocked that order in November, allowing the seasonal closures to take effect pending the government's appeal.
Perhaps even more worrying for the lobster industry, however, was the panel's mention in that ruling that the National Marine Fisheries Service could ultimately prevail on its seasonal closure of that area off the coast of Maine.
“As we have explained, it is likely that the Agency ruling at issue here will be sustained given the deference that a court must accord to executive agencies carrying out congressional mandates,” U.S. Circuit Judge William Kayatta Jr. wrote for the panel in November.
Along with Judge Gustavo Gelpi Jr., who was also on the November panel, Kayatta was joined Tuesday by Judge Sandra Lynch for the latest round of oral arguments.
Frawley argued the National Marine Fisheries Service rested solely on speculation in closing the strip of ocean — a move that he said could leave lobster fishermen losing out on 4 million pounds of catch. He had asked the government to do acoustic recordings, aerial surveys and more testing to better locate right whale habitats.
Lynch asked Frawley if he had approached attorneys for the Marine Fisheries Service to see if they would work out a way to get more information about what was happening in the ocean.
Frawley began to make two points, but Lynch cut him off: “Will you answer my question rather than making a speech?” the Clinton appointee said.
Frawley then said his clients were not allowed to sit on the take-reduction team.
The Atlantic Large Whale Take Reduction Team, made up of industry groups, conservation groups and state officials, is a group that seeks to reduce the harm to whales caused by fishing gear.
“That is an entirely different issue,” Lynch responded.
Frawley said his clients were trying to gather data on their own. “Lawyer to lawyer is not the way this works … it has to be science to science,” Frawley said.
Noting that the lawyer had a little less than 60 seconds left in the 15 minutes allotted for his arguments, Lynch told Frawley to make his final statement.
In his final breath, Frawley said Maine could lose its heritage of lobster fishing, and that a closure could affect jobs. The science was available, he said, but the government was guessing at the cause of the problem, closing down areas where there are no right whales while leaving open areas where they congregate.
Justice Department lawyer Rachel Heron argued in her rebuttal that the modeling that led to the seasonal closure was done with the best available data, and the lobster fishermen did not point out any current data that was not used.
“The seasonal restriction is fair,” Heron said.
She said the agency also placed restrictions on some fishermen who use gill nets, and it revisited its rules after North Atlantic right whales experienced an unusual mortality event.
With lobster fishermen placing the vast majority of lines in the water that whales encounter, Heron said Maine lobster fishermen are being asked to do what the government is asking every other lobster fishermen in the rest of New England to do.
The suit at the First Circuit over the seasonal closure is just one of several suits challenging the government’s rules seeking to protect the North Atlantic right whale population. A dueling pair of suits are also pending in the U.S. District Court for the District of Columbia over the biological opinion National Marine Fisheries Service used to create the rules.
It is unclear when the court will rule in this case.
The third judge on the panel in November had been Judge David Barron, who became chief of the First Circuit last month. Barron is an Obama appointee, as is Kayatta. Gelpi is a Biden appointee.
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