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January 4, 2024

Trade secrets or vital data? Lobstermen sue Maine over minute-by-minute boat tracking

File photo / Laurie Schreiber A new tracker regulation has stirred up the ire of some lobster fishermen. Here, green buoys provide a spot of color among a pile of traps on a foggy day.

Fishery regulators want to know exactly where lobstermen are setting their lines in federal waters, in order to understand if and how the fishery is posing a risk to the endangered North Atlantic right whale population.

To meet that goal, a regulation that took effect last month requires federally permitted fishermen to carry a minute-by-minute tracking device on their boats. 

But a group of the fishermen say the trackers are a violation of privacy rights.

“By virtue of custom and practice over generations of lobstering men and women, the placement of lobster traps and trip routes are coveted as individual trade secrets used by lobstermen to optimize their harvest,” the group said in a lawsuit filed Tuesday. 

The complaint continues, “Accordingly, these trade secrets have substantial economic value to each lobster fisherman.”

The plaintiffs — Frank Thompson of Vinalhaven, Joel Strout of Harrington, Jason Lord of Pemaquid, Christopher Smith of Jonesport and Jack Cunningham of Bar Harbor — are federally permitted lobster fishermen who each fish 800 traps in federal waters.

The fishermen received vessel trackers from the Maine Department of Marine Resources and were required to install the trackers by Dec. 15.

Thompson also co-owns Fox Island Lobster Co. on Vinalhaven; Strout is president of the Maine Lobstering Union.

The group, supported by the nonprofit Sustainable Maine Fishing Foundation in Trenton, filed the complaint against Department of Marine Resources Commissioner Patrick Keliher and asks a U.S. District Court to void the tracking requirement.

The requirement went into effect Dec. 15 and mandates that all Maine lobstermen with federal lobster fishing permits install and maintain 24-hour electronic tracking devices on their lobster fishing vessels and to keep them operational “when the vessel is in the water regardless of the landing state, trip type, location fished or target species.”

device and cable
Courtesy / Department of Marine Resources
Federally permitted lobster fishermen were required to carry electronic trackers as of mid-December.

But Keliher said the group’s arguments “have no merit.”

“It’s ironic that a few members of an industry which has voiced a strong opinion that Maine needs to do more to protect this fishery are now resisting efforts to gather the data necessary to help defend their interests in the long run,” Keliher told Mainebiz in a written statement. 

He continued, “Data from the trackers is a critical component of the Atlantic states’ effort to ensure that the lobster industry is not burdened with management decisions based on assumptions derived from insufficient data.”

Broad effort

The tracking requirement stems from the Atlantic States Marine Fisheries Commission, a multistate organization through which Atlantic coast states coordinate their conservation efforts and share the management of migratory fisheries within their state waters.

Once the commission drafts regulations and enforcement guidelines, states then draft rules in compliance. 

The commission drafted the 24/7 tracking requirement in 2022. A goal was to support federally mandated risk reduction to the endangered North Atlantic right whale by reducing the risk of entanglement in fishing lines. 

According to a DMR notice to federal permit holders, the goal of the requirement is to provide more detailed data on fishing effort in federal waters to support a more accurate stock assessment and to help managers address challenges associated with required reduction of risk to whales, emerging ocean uses such as offshore wind energy, and enforcement.

The DMR distributed trackers to state license holders who also hold federal lobster and crab commercial trap gear permit and provided three years of cellular service required to upload data at no cost. The devices and service were funded by a congressional appropriation.

The tracker collects the time and position of fishing boats once per minute while the vessel is moving. When the vessel is tied up, the tracker collects the time and position every six hours, until it's in motion again. The information includes longitude, latitude, a corresponding vessel identifier. The DMR says the tracker data is confidential.

The requirement was part of a broader effort to improve data on fishery and right whale interactions.

In December, Maine received $17.2 million from the National Oceanic and Atmospheric Administration toward that effort.

“The goal of this research is to collect data that tells us what is happening in the Gulf of Maine, so we can be protective of whales in a way that also doesn’t devastate Maine’s critically important lobster industry,” Keliher said at the time.

The lack of data on the presence of the right whale and of fishing effort in the Gulf of Maine “has resulted in high uncertainty in existing models that the federal government uses to determine the risk of serious injury and mortality to right whales by lobster gear,” according to a DMR news release at the time.

The funding aims to allow the DMR to expand right whale research and improve the assessment of risk to right whales posed by fixed gear fisheries in advance of future federal rulemakings.

“That uncertainty has caused federal regulators to make assumptions that have resulted in sweeping regulations which have caused significant economic hardship for Maine's critically important lobster industry,” said Keliher.

Other steps

In addition to the trackers, DMR said it would use the funds to conduct passive acoustic monitoring at 26 sites throughout the gulf and to conduct surveys of right whales in the gulf by boat and airplane, as well as surveys of the primary food source for right whales, a species of zooplankton known as Calanus finmarchicus.

The efforts add to eight passive acoustic monitoring mooring sites deployed since 2020 in collaboration with Northeast Fisheries Science Center and the University of Maine.

The money resulted from of the Fiscal Year 2023 government funding package passed by Congress in December 2022.

But according to a statement issued by the plaintiffs this week, minute-by-minute surveillance of Maine’s federally licensed lobster fleet “is unconstitutional, unwarranted and unfair to Maine lobstermen, who have proven through the actions of generations of lobstering families that they are good stewards of the ocean ecosystems essential to their livelihoods.”

The plaintiffs said there was no assurance that the information collected would remain protected from further dissemination, including for the benefit of other offshore industry interests unrelated to lobster fishing.

Nevertheless, the release said, the plaintiffs and the Maine Sustainable Fishing Foundation support “appropriate regulatory measures, by MDMR and federal authorities, that engage in dynamic management of the lobster fishery, including efforts, some of which remain in active developmental stages, to monitor the ocean ecosystem and protect both the lobster fishery and the other wildlife that inhabit it.”

Waters within 3 miles of shore are regulated by individual states. Federally regulated waters are those from 3 to 200 miles from shore. Both federal and state governments regulate lobster fishing in federal waters through the Atlantic States Marine Fisheries Commission.

“The plaintiffs have a reasonable expectation of privacy in the movements of their fishing vessels and the precise location of their lobster traps such that they have the constitutional right to be free from unreasonable searches and seizures under the Fourth Amendment to the U.S. Constitution,” the complaint says.

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