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NEFSA Reacts to Major Win in U.S. Court of Appeals Decision



June 16, 2023


The U.S. Court of Appeals for the D.C. Circuit delivered a resounding win for New England’s working lobstermen this morning. The court held that the National Marine Fisheries Service (NMFS) had no legal basis for invoking hyperbolic, worst-case projections to justify crippling regulations on the beleaguered lobster fisheries.


The Maine Lobstermen's Association is the plaintiff in today's case and deserves all credit for delivering this important win for our fisheries and our maritime heritage.


NMFS re-authorized Maine-area lobster fisheries provided lobstermen made onerous changes meant to protect the endangered right whale. But, as today’s decision ably explains, the agency’s assessment was not based on the best available scientific data, as federal law requires. Nor could the agency justify its approach by giving the “benefit of the doubt” to the species, as the Endangered Species Act sets out no such requirement.


Lobsterman Dustin Delano, chief operation officer of the New England Fishermen’s Stewardship Association (NEFSA) and a former vice president of the MLA, issued the following statement.


“Today’s decision is a rare and long-sought victory for lobstermen. Regulators must confront the human cost of their skewed and unjustified approach. NMFS’ rules could have destroyed an iconic trade based on a distorted analysis of data that the law does not justify.


“Lobstermen, like all New England fishermen, are formed in an ethic of conservation that long predated federal regulations and the environmental movement. We are deeply sensitive to the marine environment because we depend on it for our livelihoods and our heritage.”


Writing for the three-judge panel, senior Judge Douglas Ginsburg wrote:


“The Service’s legal reasoning was not just wrong; it was egregiously wrong. The Service’s argument rested entirely upon a half-sentence in the legislative history. This ‘approach is a relic from a bygone era of statutory construction.’ Under the Service’s approach, legislative history may supply duties that, as the Service now concedes, are not found in the enacted law. As the Supreme Court recently said, ‘We cannot approve such a casual disregard of the rules of statutory interpretation.’ The reason is obvious; as any high school Civics student should know, legislators vote on and the president signs bills, not their legislative history.”

The court elsewhere noted that NMFS had contradicted itself in the past:


“Only a few years ago, the Service, revisiting its interpretive rules, agreed with commenters that “nothing” in the ESA required it to use ‘a ‘worst-case scenario’ or make unduly conservative modeling assumptions,’ and rejected comments arguing it should give the benefit of the doubt to a species by evaluating ‘effects or activities that were possible even if not likely.’”


NEFSA is relieved by today’s decision and hopes NMFS will better collaborate with all fishermen in the future.

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