Lobstermen Chris Anderson, left, and Gerald Cushman sort lobsters in Port Clyde on Monday. Derek Davis/Staff Photographer

Maine lobstermen are suing a sustainable seafood certification program that has put the lobster fishery’s catch on a “red list” of foods to avoid.

The Maine Lobstermen’s Association, the Maine Coast Fishermen’s Association and three lobster-based businesses filed a federal lawsuit on Monday against the Monterey Bay Aquarium Foundation for “making false and defamatory statements about Maine lobster fishing practices and for misleading consumers and commercial lobster buyers about the integrity of the Maine lobster harvest,” the lobstering groups said.

Last year, the aquarium’s Seafood Watch program downgraded its rating for the lobster fishery from yellow to red, claiming that Canadian and U.S. management measures don’t do enough to reduce entanglement risk or promote the recovery of the critically endangered North Atlantic right whale population. As a result, Seafood Watch lowered its ratings for all fisheries that use pots, traps and gillnets within the right whale’s range.

The red list is meant to alert consumers that the seafood is harvested in ways that have a high risk of harming wildlife or the environment and should be avoided, Seafood Watch said. The fishery was previously designated as “yellow,” a “good alternative” to the red list.

Now, the lobster industry is pushing back, claiming the assertions of the red listing are not only false but damaging, causing substantial economic harm to the plaintiffs and the Maine lobster brand.

Gerald Cushman is a sixth-generation lobsterman in Port Clyde. Derek Davis/Staff Photographer

According to the lawsuit, Atwood Lobster, one of the plaintiffs, lost a major purchaser due to the red listing. Another plaintiff, Gerald Cushman, owner of the Bug Catcher Inc., says he saw a 20% decline in business. Bean Maine Lobster Inc, the Maine Lobstermen’s Association and the Maine Coast Fishermen’s Association each reported losses in excess of $75,000.

And the plaintiffs say it goes further than that.

Maine lobstermen hauled $389 million worth of lobster last year – the lowest-valued catch in a decade. The size of the haul and the per-pound price of lobster also fell substantially from the previous year’s high figures.

The lawsuit points a finger at Seafood Watch.

“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 Plaintiffs,” the groups said in their complaint.

Maine’s lobster fishery isn’t the only one to suffer losses. Earlier this month, a group of four Massachusetts lobstermen filed a similar lawsuit against the Monterey Bay Aquarium and another sustainability watchdog, the Marine Stewardship Council. Together, they are seeking damages in excess of $75,000.

The aquarium said in an email Monday that both lawsuits are “meritless.”

The lawsuits, the aquarium said, “ignore the extensive evidence that this fishery poses 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.”

SCIENCE OR CONJECTURE?

The Maine lawsuit challenges the science behind the claims that lobster fishing practices are responsible for harming North Atlantic right whales.

Lobsterman Chris Anderson loads his traps onto his trailer in Port Clyde on Monday. Derek Davis/Staff Photographer

When Seafood Watch announced its decision to downgrade the fishery, the group acknowledged that the vast majority of the incidents cannot be linked to a specific type of fishing gear or location and therefore cannot be blamed on a specific fishery.

“Until there is more evidence, all of the fisheries using this gear are considered a risk,” the aquarium said. It said the fishery “may be a part” of the known entanglements between 2015 and 2019.

The plaintiffs argue that this fault-finding is conjecture, not science.

“There is no evidence supporting the aquarium’s statements about the Maine lobster fishery,” they said, adding that the aquarium declined to provide examples of the science when asked.

The lawsuit demands monetary relief and an injunction ordering the aquarium to remove and retract all its “defamatory” statements.

“This is a significant lawsuit that will help eradicate the damage done by folks who have no clue about the care taken by lobstermen to protect the ecosystem and the ocean,” said John Petersdorf, CEO of Bean Maine Lobster Inc. “Lobstermen are very responsible stewards of the ocean. We cannot sit back and let lies to the contrary prevail.”

Cushman, owner of the Bug Catcher and a sixth-generation lobsterman, said he will continue to do what he can to protect the ocean and its wildlife.

“Our stewardship practice is a tradition that defines what Maine is all about,” he said. “The barrage of lies about Maine fishing practices must be confronted and defeated by truth.”

Lobster traps are stacked along the waterfront in Port Clyde on Monday. Derek Davis/Staff Photographer

Seafood Watch announced it was considering downgrading the fishery in February 2022, and made it official that September.

The public outcry was immediate.

Lobstermen, restaurants and consumers called for boycotts of companies like Blue Apron and Hello Fresh, which both announced they would no longer include lobster in their meal kit delivery options.

Whole Foods Market also was targeted, though at the time, the upscale grocery store chain was still selling Maine lobster. Perhaps the initial controversy was moot. Whole Foods stopped selling Maine lobster just a few months later, when another sustainability label was revoked.

In response, Maine’s congressional delegation and Gov. Janet Mills sent a letter to Seafood Watch, urging the group to reconsider.

The Maine Lobster Marketing Collaborative also started a petition against the listing on change.org, saying its decision to red-list lobster is not supported by facts and is counterproductive.

Monday’s suit revitalized some interest in the petition, which had over 27,500 signatures by late afternoon.

DIFFERING OPINIONS

The National Oceanic and Atmospheric Administration – the federal agency overseeing lobster fishing and right whale protection – holds that entanglement in fishing gear is the leading cause of injury and death for North Atlantic right whales. However, their numbers also are dwindling due to ship strikes and low calving rates.

The animals’ current population numbers fewer than 340, with only 70 breeding females. NOAA estimates that over 80 percent of those right whales have been entangled in fishing gear at least once.

Maine lobstermen and state officials, however, have argued that there is no proof that right whales are being entangled in Maine lobster fishing rope.

No right whale deaths have ever been conclusively linked to the state’s lobster fishery, supporters note, and the last known entanglement was in 2004. However, scientists point out that a historic lack of gear marking has made it difficult to tell where a whale may have become entangled.

They also argue that many right whales that die from entanglement injuries have been found with no rope left on them at all. Any of those, they say, could have been entangled in Maine gear, which forms a virtual rope curtain across high-traffic whale migration routes.

The National Marine Fisheries Service, an agency within NOAA, released new regulations in 2021 designed to lower the whales’ risk for entanglement.

The controversial regulations and further plans to help the whales in the next decade ignited a firestorm of litigation from both sides of the issue. Environmentalists argued the rules don’t do enough. Lobstermen said they go too far and threaten the future of the industry.

An addition to the government’s spending bill granted the fishery a six-year reprieve from further new regulations while officials work to develop new ropeless gear technology and study the whales’ movements.