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Commercial Fisheries News
Volume 34 Number 8
April 2007
MLA intervenes in whale lawsuit; raises money
ROCKPORT, ME – The Maine Lobstermen’s Association (MLA) has mounted a campaign to develop a legal defense fund to raise money for growing legal expenses resulting from its decision to intervene in a whale lawsuit.
During the association’s March 2 annual meeting here at the Maine Fishermen’s Forum, MLA leaders explained the situation to dozens of its members and other interested parties.
“We’re putting ourselves on the line, but we think this is a battle worth fighting,” said MLA Executive Director Patrice McCarron. “We can’t afford to lose.”
On Feb. 12, the Human Society of the United States and The Ocean Conservancy filed suit against the National Marine Fisheries Service (NMFS) for NMFS’s failure to release a final Atlantic Large Whale Take Reduction Plan rule in a timely manner as required by the Marine Mammal Protection Act (see CFN March 2007 for details).
NMFS actually withdrew the final rule from the Office of Management and Budget on Feb. 7 and was “re-evaluating” parts of it.
McCarron said, “We’ve really been scrambling to figure out what this lawsuit means to us as an industry in the absence of a final rule.”
But after consulting extensively with its own attorneys, the MLA’s board agreed it needed to be proactive.
“We do feel it is in our best interest to intervene in this,” McCarron said.
“A foot in the door”
Oddly enough, the MLA has to intervene on the side of NMFS, but Drew Minkiewicz of the Washington, DC-based firm Kelley Drye & Warren LLP, which is representing the MLA, urged those at the meeting to view the step as a necessity.
“Don’t look at it as though you’re taking the side of NMFS. Look at is as though you’re standing up for yourself,” he said.
Recognizing the level of discomfort some had with the idea, Minkiewicz added, “If you come in as intervenors, you can put your opinion before the judge and you have a much better shot at influencing the outcome.
“You as a group have an interest and something at stake in this litigation,” he said. “It’s giving you a foot in the door to have your interests represented before the judge.”
“No choice”
Even before the environmental lawsuit became a factor, the MLA had approached Kelley Drye & Warren LLP to retain the services of attorney David Frulla, who has successfully defended the commercial fishing industry in other cases and works closely with fishermen on a day-to-day basis.
The MLA had been expecting the release of the final rule “any day” and feared it would match the proposed rule, which called for the use of sink rope for groundlines instead of float rope pretty much along the entire Maine coast except inside a line running from headland-to-headland.
“Sink rope doesn’t work for us in the rocky, coastal habitat here. It chafes,” said MLA President David Cousens.
Cousens considered it completely impractical and unacceptable to have the vast majority of Maine’s lobstermen convert from poly to sink rope.
“That’s too much of an economic burden for us to take because someone thinks we might see a right whale once every 10 years,” he said.
Of the whales, Cousens said, “We’re not saying they’re not in the Gulf of Maine, but they take a route 40-50 miles offshore to get to the Bay of Fundy. We don’t see them.”
Cousens called it “sad” that the MLA had to divert valuable time and resources to become involved with lawsuits.
However, he said, “We’re in a situation where we don’t have a choice. We cannot just cave on this one.”
State looks at options
Maine Department of Marine Resources (DMR) Commissioner George Lapointe said the department had sent a copy of the lawsuit over to the state Attorney General’s office for an opinion.
Whatever the outcome, Lapointe didn’t think that being in this endless state of limbo was helping matters.
“We need to get on with it and have this come to a head,” he said. “This is a really serious matter. NMFS has had this rule for years.”
To the MLA, Lapointe said, “Intervening is the right way to have your oar in the water.”
Even though the state’s legal strategy wasn’t fully developed at press time, Lapointe said, “Clearly Maine has been concerned about this and is going to be fully engaged on the substance of the rules when they come out.”
So much money
While no one was pleased with the turn of events, McCarron said, “For a bad situation, we’ve really got our ducks in a row.”
However, the need to raise tens of thousands of dollars or more for legal expenses was clearly daunting for all of the MLA’s leaders.
On a positive note, McCarron said the whale suit was turning out to be “a unifying issue for the lobster industry,” and the MLA had already received sizable contributions to the legal defense fund from the Downeast Lobstermen’s Association and the Southern Maine Lobstermen’s Association. Plus, additional contributions were starting to come in from dealers, businesses, co-ops, and individual lobstermen, she said.
McCarron emphasized that all of the money collected through the campaign was going straight into a dedicated account specifically for the lawsuit.
“When you do these things, you’ve got to have the best lawyer and you’ve got to jump in with both feet,” she said.
Two parts
McCarron also emphasized that there were two aspects to the litigation. First, the MLA had to intervene in the current lawsuit initiated by the two environmental groups, and then, the MLA might need to get involved in a second suit if NMFS publishes an unacceptable final rule.
MLA board member Pat White urged everyone to be realistic about the outcome. Recognizing that the final rule won’t just “go away,” White encouraged lobstermen to start thinking in terms of an acceptable buffer zone or boundary line.
“If we can get that moved out to three miles or the 50 fathom line, that’s a pretty significant step,” he said.
Janice M. Plante
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