A U.S. District Court of Appeals for the District of Columbia recently ruled in favor of Maine lobstermen in ordering the National Marine Fisheries Service (NMFS) to vacate a 2021 biological opinion regarding North Atlantic right whales which had led to more stringent lobster fishing rules.
The unanimous 3-0 ruling filed with a majority opinion written by U.S. Senior Circuit Judge Douglas Ginsburg found NMFS went too far in its analysis of the lobster and Jonah crab industries’ potential harm to endangered right whales. The fishermen and the state of Maine appealed their case to the U.S. Court of Appeals for the District of Columbia Circuit after losing in a lower court.
The court’s ruling found NMFS overstepped its authority by using worst-case scenarios and pessimistic assumptions in crafting a biological opinion leading to new rules and gear changes in the New England lobster fishery. Ginsburg cited a 1978 Supreme Court case involving a $100 million dam project mired in an Endangered Species Act debate over precaution and uncertainty.
“This history shows the Congress did not want economic activity stopped in its tracks whenever complete data was lacking,” the court wrote, adding “To say uncertainty is a reason to veto a federal action is to say that many valuable activities must cease, even if the risk of jeopardy is not ‘likely,’ but speculative.”
The appeals court decision also called the NMFS biological opinion both “capricious” and contrary to law. “The service’s legal reasoning was not just wrong; it was egregiously wrong” Ginsburg wrote, questioning the government’s application of “a precautionary principle in favor of the species.”
Reading between the legal lines a bit, this ruling could have wider-reaching implications for other Atlantic coastal communities, and even for recreational fishing interests. For example, NMFS and the U.S. Department of Commerce are currently looking into extending 10-knot speed limits in areas when right whales are present, while expanding the limits to cover vessels 35 feet in length and over. However, according to Frank Hugelmeyer, president and CEO of the National Marine Manufacturers Association (NMMA), such a decision would be “the greatest restriction to our nation’s cherished waterways” from Massachusetts to central Florida.
Testifying alongside Hugelmeyer before the House of Representatives Natural Resources Subcommittee on Water, Wildlife and Fisheries, New Jersey charter boat captain Fred Gamboa said the 10-knot speed limit “would make it impossible” to run tuna charter fishing trips. According to Capt. Gamboa, he’s calculated that such a restriction on boats like his 39-foot and 44-foot center consoles could cost him roughly 70 trips in a year at a loss of $140,000.
To paraphrase Judge Ginsburg, I dare say that’s rather capricious.
I spoke with my friend John DePersenaire who heads up government affairs at the Viking Yacht Company about the ruling, and he believes it could serve as a catalyst for restoring a balanced approach to the management of marine resources. “The recent ruling by the DC Circuit Court underscores the imperative for the agency to rely on the ‘best scientific and commercial data available,’ ensuring that regulations are not implemented ‘haphazardly’ on the basis of speculation or surmise,” DePersenaire said.
“For far too long, the absence of robust data has led NMFS to default to a precautionary approach which negatively impacted impacting stock assessments, recreational catch estimates, and even marine mammal conservation efforts such as the North Atlantic Right Whale vessel speed rule,” he told me.
DePersenaire cited another recent court decision which found NMFS in violation of the 4th Amendment search requirement during the implementation of a red snapper regulation on charter boats, adding “these court opinions acknowledge the necessity for NMFS to strike a balance and refrain from imposing highly impactful regulations based on presumption.”
Who says you can’t fight city hall?
