Paul Weiland, Brian Ferrasci-O'Malley Highlighted for Historic Victory for Maine Department of Marine Resources in ESA-Lobstermen Fight

Paul Weiland and Brian Ferrasci-O’Malley were highlighted for a significant win they achieved for the Maine Department of Marine Resources. The win came in an ESA dispute where the D.C. Circuit panel shot down a biological opinion supporting lobster fishery restrictions enacted to safeguard right whales. The Court decided the National Marine Fisheries Service (NMFS) wrongly relied on worst-case scenarios favoring right whales in regard to uncertainty over the impact the lobstering industry had on the species.

Law360 noted the panel ruled that “the agency cannot select pessimistic values that lead to conclusions of higher risk and give endangered or threatened species the ‘benefit of the doubt,’ but must instead focus on ‘likely’ outcomes.”

In the matter, the Maine Lobstermen’s Association, Maine Lobstering Union, the Massachusetts Lobstermen's Association and Nossaman client the Maine Department of Marine Resources challenged a biological opinion and the related fishery rule that stated in part that traps used by the lobster industry had a significant adverse impact on right whales. The parties argued that the opinion overstated the risks the lobster fishery posed to whales and appealed a D.C. federal judge's prior decision that NMFS reasonably supported its determinations.

Speaking to the Boothbay Register and the Penobscot Bay Pilot about the decision, Paul said, “The decision of the Court of Appeals squarely affirms the State’s position that the best available data and prevailing scientific methods should guide agency decisions.”

Maine Department of Marine Resources Commissioner Patrick Keliher stated, “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…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.”

Seafood Source called the decision an “overwhelming victory” for the Maine lobster industry and Fox News characterized it as a “big victory.” The Portland Press Herald, NHPR and Intrafish also highlighted the win.