by Michelle C. Pardo

Maine is synonymous with lobster.  So states the federal court defamation lawsuit filed this week by a coalition of lobster fishing companies and trade groups against the Monterey Bay Aquarium over its “Seafood Watch” program, which accused Maine fisheries of falsely putting North Atlantic right whales at significant risk of entanglement and risk of extinction.  Bean Maine Lobster, Inc., et al. v. Monterey Bay Aquarium Foundation, No. 2:23-cv-00129 (JAW)(D. Maine).

The aquarium’s Seafood Watch program assigns ratings to varieties of seafood based on environmental impact and sustainability.  In September of 2022, Seafood Watch published a “red” rating for lobster caught in certain Canadian and U.S. fisheries.  Seafood Watch’s current red, “avoid” rating instructs the public to “take a pass on these for now.  They’re caught or farmed in ways that harm marine life or the environment.”  The aquarium’s rating, allegedly based on “all scientific data,” claimed that lobster fishing practices in the stated region (specifically, pot, trap and gillnet fisheries) pose “significant risks of entanglement” to North Atlantic right whales and that the fisheries are putting the species “at risk of extinction” and therefore could not be considered “sustainable.”  The Gulf of Maine is the center of the U.S. lobster industry.

Plaintiffs allege that Seafood Watch changed lobsters’ sustainability from “yellow” (good alternative) to “red” (avoid), despite evidence that Maine’s lobster industry had changed (in 2009, 2014 and most recently in 2022) to protect whales, which plaintiffs state are rarely found in Maine waters.  According to the Complaint, there have been no documented entanglements or serious injuries to whales linked to Maine fishing equipment in more than 18 years.  In its public statements, the aquarium had conceded that “due to a lack of information, it is often not possible to assign entanglements to a specific fishery.”

The aquarium’s 2022 Lobster Report also acknowledged that entanglement in fishing gear is just one of several factors contributing to the declining right whale population, including “climate-related shifts in prey distribution, anthropogenic noise, pollution, [and] vessel strikes.”   Plaintiffs also allege that climate-driven changes have driven the right whale’s food supply to Canadian waters where deep-water snow crab gear presents a threat.  Unlike the Maine lobster fishery, Canada has not implemented protective gear deployment measures for snow crab gear and is not expected to do so until 2024.

Far from being based on the best available scientific data, Plaintiffs claim that the aquarium’s statements are demonstrably false and push a false narrative that Maine lobster fishing practices threaten the North Atlantic right whales with extinction.  Plaintiffs also claim that the aquarium downgraded the American lobster rating despite the fact that the aquarium was put on notice by Plaintiffs of data showing that Maine lobster fishing was not the cause of right whale entanglements, that entanglements occurred in Canadian waters, and that publication of its false claims would mislead consumers.   In response (and attached as an exhibit to the Complaint) the aquarium called Plaintiffs threatened litigation an “empty threat to stifle the Aquarium’s First Amendment right to free speech” and vowed to bring an anti-SLAPP motion to dismiss the lawsuit and recover fees.

Plaintiffs allege that the aquarium acted with malice, or recklessly or negligently disregarded the falsity of its statements, and that the statements had a negative effect on the Maine lobster industry’s bottom line.  Specifically, Seafood Watch’s ratings influence commercial decisions of “thousands of restaurants, stores, distributors, and other major purchasers of seafood, many of which have pledged to avoid any items that appear on the Seafood Watch ‘red’ list.”  Plaintiffs allege that several large commercial buyers have announced plans to stop selling Maine lobster and remove it from their menus, which has resulted in lost income.  Additionally, the rating has damaged the Maine lobster brand and brought economic harm to a staple of Maine’s economy.  According to the Complaint, the Maine lobster industry directly supports roughly 12,000 jobs on the water and 6,600 shore jobs through is supply chain.  Because the statements impugn an industry or profession, they are alleged to be defamation per se.

The lawsuit seeks economic damages and an injunction requiring the aquarium to remove from its website and other published material all defamatory statements concerning the Maine lobster industry and its fishing practices, as well as punitive damages and attorneys’ fees and costs.

The case is pending in federal court in lobster country (Portland, Maine).