A Discussion on NMFS’s Regulatory Authority: Whales, Speed Limits, and Legal Questions

The National Marine Fisheries Service (NMFS), an arm of the National Oceanic and Atmospheric Administration (NOAA), recently saw one of its major agency efforts that placed severe limits on the Maine lobster fishing industry in the name of protecting right whales from being entangled in fishing gear rejected by the DC Circuit Court of Appeals. The far-reaching impact of NMFS’s rule on the Maine $1.5 billion dollar lobster fishing industry was widely reported, resulting in multiple lawsuits, and congressional action before it was rejected by the appeals court, who chided the federal agency for being “egregiously wrong” about its authority and assessments.

NMFS's efforts to restrict the lobster fishing industry through the enactment of rules under both the Endangered Species Act and Marine Mammal Protection Act is part of a larger trend. NMFS is also considering putting a speed limit on recreational boats in the Florida gulf to protect Rice’s whales, and another proposal to impose a speed limit across nearly the entirety of the Eastern seaboard, which coastal communities, boaters and fishermen claim will shut down harmless boating activity and place boaters in danger by demanding they travel at the speeds that make boat travel impossible. Environmental groups argue that these rules are necessary to protect a species that hangs on the brink of extinction.

Join us for a lively and engaging discussion surrounding the recent decision, and the legality and constitutionality of NMFS’s regulatory efforts. This will be a discussion between Jane Luxton, the Managing Partner of the DC office of Lewis Brisbois, one of the attorneys on the briefs for Maine Lobstermen’s Association, and a former General Counsel of NOAA, and Braden H. Boucek, Director of Litigation at Southeastern Legal Foundation who recently filed comments in opposition to the proposal to impose a speed limit in the Florida gulf.

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.