News Feature

Originally published in Island Ad-Vantages, March 30, 2023 and The Weekly Packet, March 30, 2023
Defamation suit marks shift in fight over lobstering
MLA says Seafood Watch assessment intentionally misstates facts

by Jack Beaudoin

A University of Maine Law School professor says it’s unlikely a judge or jury will actually settle the science around lobstering’s impact on North Atlantic right whale mortality in a recently filed defamation lawsuit against Seafood Watch and the Monterey Bay Aquarium Foundation.

Instead, Dmitry Bam explained, the case—if it ever reaches trial—will probably turn on whether the aquarium’s seafood sustainability program was negligent or reckless about the evidence it actually used to claim that scientific data demonstrate that lobstering harms the endangered whale species.

Last fall, Seafood Watch put American lobsters on its red list of foods to avoid because it “is caught or farmed in ways that have a high risk of causing harm to wildlife or the environment.” Among the findings in a summary of its decision-making, the organization noted that nearly nine out of every 10 right whales bears scars from entanglement with fishing gear. Furthermore, “90% of entanglements cannot be linked to a specific gear type, and only 12% of entanglements can be linked to a specific location.”

It concluded that, given recent declines in an already low right whale population, lobstering in the Gulf of Maine and Georges Bank poses an unacceptable risk to the species.

The Maine Lobstermen’s Association fired back in its March 13 lawsuit that the aquarium’s claims “are in fact not supported by science, and that the aquarium’s false statements have caused substantial economic harm to plaintiffs, as well as to the Maine lobster brand and to Maine’s long-standing reputation for a pristine coastal environment protected by a multi-generational tradition of preserving resources for the future.”

In a press release, the MLA said, “Monterey Bay Aquarium knowingly ignored and mischaracterized scientific data to convince the public that, despite their sustainable practices, Maine lobstermen are causing harm to endangered North Atlantic right whales.”

The aquarium, for its part, says the suit seeks only to silence critics of the industry.

“These meritless lawsuits ignore the extensive evidence that these fisheries pose 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,” wrote an aquarium spokesman in an email response to questions about legal fray.

Attorney Kevin Lipson, a part-time Port Clyde resident who represents the MLA, said the aquarium has 60 days from the time it is served to respond to the suit, and he expects it to file for a motion to dismiss. If that happens, the MLA will have 60 days to counter that motion. In other words, he cautioned not to expect an immediate trial.

“Because this represents and ongoing injury to Maine fishermen, we’d like to have it resolved quickly,” Lipson said. “But we are prepared to go the distance.”

What is defamation?

According to Bam, an expert in constitutional and administrative law, a successful lawsuit alleging defamation must meet several standards. First, he said, “It has to be a statement of fact rather than opinion.”

The statement also has to be demonstrably false. “If it’s a true statement, it can’t be defamation,” Bam explained.

Finally, he said, successful defamation cases have to somehow demonstrate the state of mind of the speaker or organization. The plaintiff (in this case, the MLA) would have to prove that the aquarium was reckless in its characterization of lobstering’s threat to right whales, or that it involved actual malice toward the industry.

“Is there a reason to believe that the Aquarium’s statements are true, or at least not recklessly or knowingly false?” Bam asked. “This is the kind of thing established through expert witnesses.”

Lipson said the MLA’s complaint doesn’t list just one statement, but instead collects a number, which “when taken together represent an intentional misstatement of the facts.” As an example, he notes that in its announcements of the lobster red listing, Seafood Watch claimed it had taken into account “all publicly available data.”

But, Lipson argued, “if they really looked at all available data they would have seen that there has not been a single confirmed incident in which a right whale has been entangled in Maine lobstering gear since 2004, and in that case the whale was neither killed nor injured.”

Lipson said the facts show that Maine lobstermen have removed more than 30,000 miles of rope from the ocean in recent years, reduced the number of traps on a line, deployed weaker lines and links and even closed areas to lobstering. These actions, he suggested, are the reason that there has been no attributable right whale mortality to Maine lobstering gear.

“To suggest otherwise is a lie,” he said. “The First Amendment does not protect against defamation.”

A new arena

The aquarium has never before been sued for defamation, its spokesperson confirmed. But Lipson pointed out that it has been sued in a lesser-known case brought by Massachusetts lobstermen against Seafood Watch, claiming they have been wrongfully injured by the aquarium’s listing. From Lipson’s perspective, these cases represent the first engagements on the new front.

“This is an effort to preserve truth and honesty when it comes to these assessments by NGOs,” Lipson said, using the acronym for nongovernment agencies like the aquarium. “We need to respond to protect our fishing industry.”