BOSTON — A federal appeals court Nov. 16 reinstated a fishing closure off the coast of Maine that had been suspended by a U.S. District Court judge in October. The closure, imposed this year by the National Oceanic  and Atmospheric Administration, is meant to protect endangered right whales, which frequent the gulf of Maine.

A three-judge panel of the United States Court of Appeals for the First Circuit found that Judge Lance Walker of the U.S. District Court in Portland misapprehended the record and overstepped his role when he suspended the closure.

“While there are serious stakes on both sides, Congress has placed its thumb on the scale for the whales,” the opinion says.

Government models not based on whale sightings or acoustic readings have identified the closure area, which runs about 12 miles offshore in a rectangular area from upper Penobscot Bay to Casco Bay, as primary grounds for right whales. The area is closed to vertical line fishing from Oct. 1 to Jan. 31, a prime season for lobstermen.

The Maine Lobstering Union brought suit against the federal government challenging the closure, which has yet to be heard.

Maine lobstermen and related organizations have been critical of the federal government for forcing the restriction on them with little hard evidence to prove a large number of whales frequent the area. And Walker largely agreed with them when he decided to delay the closure just two days before it would have been implemented.

The appeals court found that the district court erred in its assessment that National Marine Fishery Service’s model lacked hard data suggesting the whales congregate in the closure area. It found that NMFS also must take into consideration the risk presented when a small number of whales enter waters with a high number of vertical lines, such as the closure area was found to have.

The appeals court panel differed with the district court’s finding that the Lobstering Union was likely to succeed on the merits, stating in its ruling that the federal government was likely to succeed on the merits.

Not allowing NMFS to fulfill its congressionally assigned task to protect right whales from the risk of death by removing vertical fishing lines from an area the agency identified as critical for the species’ survival would cause irreparable harm, the appeals court found.

NOAA estimates that there are fewer than 350 remaining right whales in the wild, according to its website. The Gulf of Maine serves as feeding waters for the whales, but researchers think their food source has also moved into Saint Lawrence Bay in Canada, leading them to migrate into Canadian waters.

The whales were hunted to the brink of extinction by the end of the 1800s, according to NOAA. In the 1970s they were placed on the endangered species list and had been experiencing a steady rise in numbers until a few years ago, when their food sources shifted into Canadian waters. Ship strikes and fishing rope entanglements are the driving factors in the whales’ current decline.

The federal government has little hard data to show that whales frequent Maine waters, while a lot of data has been gathered in Massachusetts to show that the whales congregate south of Cape Cod.

The First Circuit decision has frustrated lobstermen, but whale advocates are praising it. Conservation Law Foundation issued a press release supporting the decision, but said more measures should be taken to keep the species from going extinct.

“We’re thrilled right whales will get at least some relief from deadly lobster gear,” Center for Biological Diversity Oceans Legal Director Kristen Monsell said in the statement. “The court recognized that entanglements pose an existential threat to right whales and that federal officials followed the science in implementing this important conservation measure. But the agency needs to do more to protect this incredibly vulnerable species from extinction.”

The Maine Lobstermen’s Association, which is also a party in the lawsuit against the federal government, released a statement criticizing the decision, claiming that the appeals court was not presented with all of the information about flaws in the science behind the closure.

“Yesterday’s decision resolves only the question of whether fishing will be allowed in the LMA 1 closure while the case is pending,” Executive Director Patrice McCarron said. “Nevertheless, it foreshadows the grave future our lobster fishery faces if NMFS’s 10-year whale plan is not rescinded in favor of a plan based on science.”

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