December 22, 2023
The Supreme Court has a once-in-a-lifetime opportunity to return control of New England’s fisheries to the people who have ably stewarded them for generations.
In my experience as a lobsterman and fisheries advocate, elected representatives are at least sensitive to the needs and interests of fishing families. The same cannot be said of regulators, who wield their hostility to our trade with a powerful legal tool that the justices may soon scrap.
That tool, the Chevron doctrine, requires courts to accept agency interpretations of ambiguous laws. In practice, this means that regulators always construe the law to their advantage and the detriment of fishing communities.
This rule degrades the ability of fishermen and our political leaders to influence policy over waters we depend on. This dynamic is especially dangerous now. The fishing fleet is facing more stress than ever from overregulation, offshore wind development and a generally difficult business environment.
The case before the high court involves a challenge to the National Oceanic and Atmospheric Administration’s at-sea monitor program. NOAA places observers aboard commercial fishing vessels to police fishermen while they work. The program is intrusive and unsafe. But the worst part is that fishermen are forced to pay for the monitor’s salary, berth and supplies.
NOAA concedes that the monitors cost at least $700 per day. Fishermen, who already run on tight margins, are losing thousands of dollars over the course of a voyage. Federal law does not authorize the agency to stick fishermen with the bill. But NOAA has invoked Chevron to ward off legal challenges.
Lawmakers can do more to help the fisheries. But in general, Congress has been responsive to our concerns. It’s the regulators who are utterly indifferent to fishing families and fishing communities.
For example, in 2021 the National Marine Fisheries Service crafted a “whale protection” plan that posed a mortal threat to lobstering. The agency dubiously blamed a recent uptick in whale deaths on entanglement with lobster gear. The “whale protection” plan directed lobstermen to reduce the risk of entanglements by 98%. Compliance meant the demise of the industry – we were asked to remove so many traps from the water that lobstering would no longer be profitable.
The Maine Lobstermen’s Association challenged the plan in court. Amazingly, agency lawyers admitted that the data as to lobstering and whale deaths were “uncertain.” But that didn’t matter to the agency. They effectively invoked Chevron and said that the agency can do whatever it wants, because federal law doesn’t address how agencies should handle uncertainties in the data.
While regulators ignored us, lawmakers did not. Maine’s congressional delegation took up the cause of their constituents and spearheaded a successful push to scrap the plan.
Hostile regulators laying plans for offshore wind development are also imperiling the future of our fishery. Federal environmental agencies have big plans for the Gulf of Maine, but they don’t involve fishermen. The latest development site, or “draft call area,” the government has designated covers 3.5 million square acres.
The plan designates “secondary sites” that might eventually be designated for development. These areas include our most important commercial lobster fishery, Lobster Management Area 1.
Building wind turbines in Lobster Management Area 1 would decimate maritime communities. Maine lobstermen generate $1 billion in revenue for our state. Lobster dollars drive retail and service economies, especially in sparsely populated coastal towns and island communities. The fleet supports thousands of jobs, both on the water and onshore.
For lobstermen and those who depend on us, it is unthinkable that regulators – our own government – would even contemplate this step. Yet they have done so.
While regulators ignored us, lawmakers did not. Rep. Jared Golden crafted legislation protecting commercially important lobstering grounds from offshore wind development. I remain hopeful that Congress will pass this bill and take an important first step toward protecting our industry.
Thanks to Chevron, the people with the most power over our iconic industry are unresponsive to our needs. I hope the Supreme Court will restore accountability to our fisheries.
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