The Maine Lobstermen’s Association (MLA), the Maine Coast Fishermen’s Association and other lobster businesses in the state on Monday filed a federal lawsuit against the Monterey Bay Aquarium Foundation, challenging claims the Maine lobster fishery is "known to entangle the endangered North Atlantic right whale," through its equipment.
The MLA, which represents 1,200 lobstermen in the state, says Monterey Bay is making false and defamatory statements about Maine lobster fishing practices and is misleading consumers and commercial lobster buyers about the integrity of the Maine lobster harvest.
The lawsuit, filed on Monday in a US district court in Maine, alleges that Monterey Bay Aquarium knowingly ignored and mischaracterized scientific data.
Other plaintiffs include Maine Coast Fishermen’s Association, Atwood Lobster LLC, and Bug Catcher Inc., owned by sixth-generation fisherman Gerry Cushman.
Last September the self-appointed seafood ratings guide from the California-based NGO Seafood Watch, still heavily referenced by foodservice and retail buyers in the country, downgraded the rating of Maine-caught lobster from “yellow” to “red,” recommending consumers and businesses “avoid” Maine lobsters, citing NOAA scientific data that pointed to risks associated with the industry and right whale deaths and injuries.
"Until it becomes clear which fisheries are responsible, all fisheries that overlap with North Atlantic right whale migrations and are known to entangle the species are potential sources of entanglements, which may result in mortalities," the Seafood Watch assessment read.
Maine leaders said following the downgrade that several facts were left out of Seafood Watch’s “Red List” assessment, noting that there has not been a right whale entanglement with Maine lobster gear since 2004 and that right whale impacts have never been attributed to Maine lobster gear.
"MLA and other stakeholders in the lobster industry engaged in a dialogue with the Aquarium prior to September 2022 and repeatedly presented evidence that the Maine lobster fishery was not responsible for right whale entanglements," the plaintiffs said.
The NGO dismissed Maine's as well as a separate lawsuit filed earlier this month by the Massachusetts Lobstermen’s Association against the group as well as the Marine Stewardship Council that has asked for monetary damages.
“These meritless lawsuits ignore the extensive evidence that these fisheries pose a serious risk to the survival of the endangered North Atlantic right whale, and they seek to curtail the First Amendment rights of a beloved institution that educates the public about the importance of a healthy ocean," Monterey Bay Aquarium told IntraFish.
The Maine plaintiffs are demanding monetary relief and an injunction ordering Monterey Bay to remove and retract all alleged defamatory statements about Maine lobster from its website and other materials.
Following the ratings downgrade, the Marine Stewardship Council (MSC) suspended its certification for The Gulf of Maine lobster fishery, citing a July 2022 federal court ruling -- Center for Biological Diversity v Gina Raimondo, Secretary of Commerce -- that found regulations intended to reduce the risk of the Maine lobster fishery to right whales do not meet the legal requirements of the US Marine Mammal Protection Act and Endangered Species Act for fixed-gear fisheries.
That ruling affirmed findings that "the two principal causes of right-whale deaths are vessel strikes and entanglement in fishing gear."
While a federal court as well as US Congress has since deemed the lobster fishery sufficient to operate under current regulations until 2028, losses for the industry have mounted, including Whole Foods pausing its purchase altogether of the lobster.
"As a result, several large businesses that had purchased lobsters from Plaintiffs in the past announced that they will no longer carry Maine-caught lobsters because of the Aquarium’s statements," the plaintiffs said. "This has caused Plaintiffs economic harm in the form of lost business. And, overall consumer demand for Maine-caught lobsters has decreased since September 2022, due in whole or in part to the Aquarium’s false statements, depressing the price for lobsters and causing further commercial harm to Plaintiff."
The MSC certificate suspension has also perplexed Maine's lobster industry, which says it has implemented several regulatory measures since the 1990s, with no whale entanglements being associated with Maine lobster gear since 2004.
Ongoing legal battles
Oral arguments have begun between Maine lobstermen and NOAA in the United States Court of Appeals for the District of Columbia in a separate lawsuit, with judges on the case questioning the validity of the data used in the 2021 NOAA federal biological opinion that ultimately resulted in the Gulf of Maine lobster fishery losing its Marine Stewardship Council (MSC) certification.
According to NOAA, 17 right whales were killed in 2017 following collisions with boats and entanglements in Canada’s snow crab fishery in the southern Gulf of St. Lawrence. That total represented about 4 percent of its remaining population, and was around six times the normal mortality of the whales.
It remains unclear what kind of decision the appeals court could make to clarify whether NOAA can proceed with regulations related to the right whale and US lobster fisheries, or whether the agency has to wait until 2028 to implement new restrictions, the Maine Lobstermen's Association confirmed with IntraFish.