Lawyers pledge pro bono time to lobstermen in gear dispute

ROCKPORT – The Maine Lobstermen’s Association is running out of legal defense funds, but it will have some new help in fighting federal fishing gear requirements that are expected to take effect in October.

The group has found a Washington, D.C., law firm willing to take the case pro bono.

Lobstermen held their annual meeting Friday morning at the yearly Maine Fishermen’s Forum at the Samoset Resort in Rockport. Patrice McCarron, executive director of the lobstermen’s association, told approximately 150 people at the meeting about the group’s effort to avoid having to use sinking ground lines between traps that lie on the ocean bottom.

To help with the legal effort, the group recently hired the law firm of Hogan & Hartson, which has agreed not to bill the group for its lawyers’ time.

The new legal counsel will incur other costs, however, that arise as it contests the impending rule, McCarron indicated.

“You guys are staring down the barrel of a gun right now,” she told the gathered fishermen. “We still need more money. Talk to people in your area and pony up, or we’re out of the game.”

In 2007, the association raised nearly $90,000 to fight the impending federal rule – more than half of the amount from 376 people – and spent more than $87,000 of it, she said. The Maine Lobstermen’s Association and other commercial lobstering organizations are fighting the rule because they say it will harm their industry and may not help the endangered whales the rule is meant to protect. The National Marine Fisheries Service decided last fall that fishermen who set their gear outside a boundary approximately three miles from shore will have to use sinking ground lines in order to decrease the threat of entanglement to whales.

Fishermen, especially in eastern Maine where the ocean floor tends to be jagged, use floating ground lines to prevent their gear from getting snagged on the bottom. Some environmental groups have argued that the loops of rope that float up toward the surface pose a threat to whales, which are believed to dive to the bottom when they feed.

To force the federal government to do more to protect whales – only 300 to 400 right whales are left in the north Atlantic Ocean, according to estimates – the Humane Society of the United States and The Ocean Conservancy sued the federal government. The fisheries service issued the new rule requiring fishermen to use sinking ground lines in response to the lawsuit.

The Maine Lobstermen’s Association has been critical of many aspects of the new rule. The group claims the rule is unenforceable, will ramp up fishermen’s operating expenses, and is insufficiently supported by scientific data. It also has argued that there is not a sinking rope on the market that clearly meets the new federal standard and that the rule should permit the use of neutrally buoyant rope, which may pose less of an entanglement threat to whales.

The group also has said sinking rope behaves differently while being handled and could pose more of a safety hazard to fishermen.

McCarron said Friday that because vertical lines that connect traps to floating buoys are exempt from the rule, it probably will result in more vertical lines in the water, which could pose more of an entanglement threat. What the lobstermen’s association wants, she said, is to work toward a solution that works for both fishermen and whales.

“We are going to be regulated somehow, but I would like it to make sense,” she said.

Ryan Post, who fishes off the southern end of Metinic Island, said he sets his trap outside the three-mile exemption line but in shallow water where live whales won’t go. If he has to spend about $15,000 each year on more expensive, less durable sinking rope and replacing lost gear, he said, he won’t be able to afford to help maintain Metinic, which his family has owned for about 150 years.

“If this [rule] goes through, we literally could lose this island,” he said. “It’s totally crazy and out of control. It’s not going to help the right whale – it’s going to hurt the right whale.”

Kevin Downey, a lawyer with Hogan & Hartson, said NMFS has not been very receptive to MLA comments, offered relatively late in the federal rule-making process. But, he added, MLA and its attorneys have been making headway in arguing that, at the very least, implementation of the rule should be delayed. He said the lack of sufficient scientific data supporting the rule is compelling.

“The information MLA presented is extremely important,” Downey said. “We’ve gotten the ears of the right people. We’re presenting a case that looks very strong.”

Mary Anne Mason, a partner with the law firm, said she hopes federal regulators will acknowledge that the October implementation date is impractical because it is in the middle of the prime fall fishing season.

“We would hope to get that in a matter of weeks, at least on an informal basis,” Mason said.

Fisherman Mike Ball of South Thomaston urged his fellow MLA members to support the cause financially.

“It blows me away only 400 guys sent money,” Ball said. “We make a living from this sea. We need to buck up and do it.”

btrotter@bangordailynews.net

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