Court Removes Government Claws From Lobster Industry

The U.S. District Court of Appeals for the District of Columbia has ruled in favor of Maine lobstermen by ordering the National Marine Fisheries Service (NMFS) to vacate a 2021 biological opinion regarding North Atlantic right whales that cut in half the number of lobster traps that could be deployed. The appeal court ruled 3-0, and Judge Douglas Ginsberg authored the opinion. 

The NMFS argued that “data are limited” and that it was “forced to make assumptions” under a “range of values” that gives the “benefit of the doubt” to threatened and endangered species. The court found that the Service’s biological opinion was “arbitrary as well as contrary to law.” The Service’s legal reasoning “was not just wrong; it was egregiously wrong” because based on legislative history, not statute, but there was more to it. 

Statutory text and structure, Ginsburg wrote, “do not authorize the Service to ‘generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species’ whenever it faces a plausible range of values or competing analytical approaches.” The statute is focused upon “likely” outcomes, not worst-case scenarios and “requires the Service to use the best available scientific data, not the most pessimistic.” 

Patrice McCarron, executive director of the Maine Lobstermen’s Association (MLA), called the decision “an overwhelming victory for lobstering families and the communities that rely on this industry, and it reaffirms what the MLA has been saying all along – the federal government does not have a blank check to use ‘worst-case scenarios’ and disregard actual data in its regulation of the Maine lobster fishery.”

There appears to be no statute requiring the NMFS, EPA, or any government bureaucracy to submit data for replication by an outside party. The replication process would help ensure scientific soundness and avoid biological opinions that defy science and harm workers’ livelihoods. For further reading, see “The Endangered Species Act: Who’s Saving What?” by Randy Simmons. 

Meanwhile, the Washington Post reports that Judge Ginsburg “was forced to withdraw as President Ronald Reagan’s nominee for a vacant U.S. Supreme Court seat that had been earlier denied to Robert Bork.” The reason was Ginsberg’s “admission that he had used marijuana in the 1960s and 1970s while a college student and Harvard Law School professor.” On the other hand, neither Al Gore nor Bruce Babbitt, both presidential candidates, “appeared at all damaged by their admissions of drug use in their 20s.