Feds ordered to re-work whale rules

IN A MAJOR victory for Maine’s lobster industry, a federal appeals court in June ordered the National Marine Fisheries Service (NMFS) to go back to the drawing board and re-work the most recent federal regulation to protect endangered North Atlantic right whales. In its decision, the U.S. Court of Appeals for the District of Columbia Circuit agreed with the plaintiffs, Maine Lobstermen’s Association, and plaintiff-intervenors the Maine Department of Marine Resources, the Maine Lobstering Union, and the Massachusetts Lobstermen’s Association, ruling that NMFS distorted the science driving the regulation, relying improperly on assumptions and worst-case scenarios when determining the risk posed by industry to right whales. The court’s decision allows the current regulation to remain in effect while NMFS develops a new rule and does not impact recent Congressional action to delay further rulemaking until 2028.

The court has also overturned the biological opinion in which NMFS analyzed the risk posed by the lobster and Jonah crab fisheries to right whales, requiring NMFS to develop a new one.

“Maine’s lobstermen and women have long demonstrated their commitment to maintaining and protecting a sustainable fishery in the Gulf of Maine,” the Maine congressional delegation and Gov. Janet Mills wrote in a statement responding to the news. “The decision vindicates what the Maine lobster fishery, and the countless communities that rely on it, knew all along—that their practices support the conservation of the gulf ecosystem for generations to come. We are pleased the court has acknowledged that the data set NOAA has been using to unfairly target Maine’s fishery is flawed.”

THE MAINE Connectivity Authority was awarded $30 million in federal funding from the Middle Mile Broadband Infrastructure grant. This investment is funded by the Bipartisan Infrastructure Law and will support Maine’s strategic goal of providing universal broadband access throughout the state.

“As one of the most rural states in the nation, Maine will see immense benefits from expanding high-speed, affordable broadband access to all our people,” members of the state’s congressional delegation noted in a joint statement. “In the 21st-century economy, access to high-speed internet is absolutely essential to business development and job growth in rural areas, and it opens doors to new opportunities in telehealth and education.”

In securing the funding, “Maine is demonstrating its national leadership in the expansion of high-speed, reliable and affordable internet,” said Andrew Butcher, president of the Maine Connectivity Authority. “MOOSE Net will provide the connectivity infrastructure to enable the industries that power Maine—farming, fishing, forest products, and fun.”

The Bipartisan Infrastructure Law invests $65 billion to support broadband infrastructure nationwide, including $1 billion for the Middle Mile Broadband Infrastructure Grant Program administered by the National Telecommunications & Information Administration. The funding will support the construction, improvement, or acquisition of “middle mile” broadband infrastructure, which will help reduce the cost of connecting areas that are unserved or underserved to the internet backbone, and bridge gaps in the broadband network.

Sen. Susan Collins was part of the core group of ten senators who negotiated the text of the Bipartisan Infrastructure Law. Collins and Senator Shaheen of New Hampshire spearheaded the broadband working group and co-authored the law’s provisions providing for $65 billion in broadband investment. This historic legislation is delivering billions of dollars to Maine for investments in broadband, roads, bridges, and more. As co-chairman of the bipartisan Senate Broadband Caucus, Sen. Angus King has been a strong advocate for expanding affordable broadband access as a way to increase economic opportunity in rural Maine.

King introduced the Middle Mile Broadband Deployment Act in 2021 that proposed creating a grant program to connect internet carriers to local networks in unserved and underserved communities.

The Bipartisan Infrastructure Law is expected to deliver approximately $2.5 billion to Maine over the next five years for critical broadband, transportation, energy, and environmental projects. In December 2022, Maine received $5.5 million to plan for the deployment and adoption of broadband service throughout the state.

Patrick Keliher, commissioner of the state Department of Marine Resources, also hailed the ruling.

“I applaud the court for this decision and I’m tremendously proud of the collaboration by the legal teams for the Maine Lobstermen’s Association and the state,” he said. “Throughout the development of these regulations, NMFS has chosen a path not supported by law, lacking in guaranteed conservation benefits for right whales, and without regard for the tremendous economic harm their misguided approach could cause the people of Maine.”

Paul Weiland, attorney for DMR, said the decision “affirms the state’s position that the best available data and prevailing scientific methods should guide agency decisions.”

The appeals court stated that when NMFS claimed that it “needed to give the benefit of the doubt” to right whales over lobstermen, it was “egregiously wrong,” relying on a single sentence of legislative history instead of enacted law. “Here, the service misconceived the law, wrongly claiming the legislative history of the ESA had ordained—if legislative history could ever ordain—a precautionary principle in favor of the species. The service therefore gets no deference, and its action cannot stand,” wrote the court.

The court also ruled that despite NMFS’ own admission that nothing in law required it to use a worst-case scenario in the development of models that determine risk to right whales, its ultimate reliance on worst-case scenarios that are “very likely wrong” was arbitrary and capricious, and therefore unlawful.

The Endangered Species Act requires NMFS to use the best available science and to focus on “likely outcomes” not the worst-case scenarios, the ruling stated. A lack of data regarding the source of serious injury and mortality to right whales, the court ruled, does not compel NMFS to assign a high, rather than low risk to the Maine lobster industry. The ESA “requires the service to use the best available scientific data, not the most pessimistic,” stated the ruling.

The court noted that the lack of data led NMFS to conclude the lobster and Jonah crab federal fisheries kill 46 whale deaths per decade, a “staggering departure from the two documented deaths known to have originated in all U.S. fisheries over a period of nine years.”

1943-2023 “The Finest Kind”

I’d like to say goodbye, dear friend, as you take your final voyage on an ocean of tears, mourned by the multitude of lives you’ve so beautifully touched.

1943-2023 “The Finest Kind”

You are a meaningful part of my life, a do-er, getting things done while always nurturing, foremost, love of family. Thanks for all the wonderful memories and I’ll always cherish the sweet moments of sharing at the Red House as our family grew to love the island experience. And, you faithfully maintained the year round lifeline to the Monhegan community. You will forever be in my heart boarding at Port Clyde and when passing the Red House.

I’d like to say goodbye, dear friend, as you’ve taken your final voyage on an ocean of tears, mourned by the multitude of lives you have so beautifully touched.

I’d like to say goodbye, dear friend, as you take your final voyage on an ocean of tears, mourned by the multitude of lives you’ve so beautifully touched.

As you look back at us with your smiling countenance, I salute you and say “Aye, aye Captain, a life well lived.” Yes, well done, Captain Jim, Godspeed.

Captain James S. “Jim” Barstow, III

Our deepest condolences to the Barstow family and extended family.

1943-2023 “The Finest Kind”

You are a meaningful part of my life, a do-er, getting things done while always nurturing, foremost, love of family. Thanks for all the wonderful memories and I’ll always cherish the sweet moments of sharing at the Red House as our family grew to love the island experience. And, you faithfully maintained the year round lifeline to the Monhegan community. You will forever be in my heart boarding at Port Clyde and when passing the Red House.

Robert Smith with Penny, Anna and Jed Smith

As you look back at us with your smiling countenance, I salute you and say “Aye, aye Captain, a life well lived.”

You are a meaningful part of my life, a do-er, getting things done while always nurturing, foremost, love of family. Thanks for all the wonderful memories and I’ll always cherish the sweet moments of sharing at the Red House as our family grew to love the island experience. And, you faithfully maintained the year round lifeline to the Monhegan community. You will forever be in my heart boarding at Port Clyde and when passing the Red House.

I’d like to say goodbye, dear friend, as you take your final voyage on an ocean of tears, mourned by the multitude of lives you’ve so beautifully touched.

Yes, well done, Captain Jim, Godspeed.

Our deepest condolences to the Barstow family and extended family.

As you look back at us with your smiling countenance, I salute you and say “Aye, aye Captain, a life well lived.” Yes, well done, Captain Jim, Godspeed.

Robert Smith with Penny, Anna and Jed Smith

You are a meaningful part of my life, a do-er, getting things done while always nurturing, foremost, love of family. Thanks for all the wonderful memories and I’ll always cherish the sweet moments of sharing at the Red House as our family grew to love the island experience. And, you faithfully maintained the year round lifeline to the Monhegan community. You will forever be in my heart boarding at Port Clyde and when passing the Red House.

Our deepest condolences to the Barstow family and extended family.

As you look back at us with your smiling countenance, I salute you and say “Aye, aye Captain, a life well lived.” Yes, well done, Captain Jim, Godspeed.

Robert Smith with Penny, Anna and Jed Smith

Our deepest condolences to the Barstow family and extended family.

Robert Smith with Penny, Anna and Jed Smith