Compromise or Resist?

Continued from February 2020 Homepage

“When we switched to whale rope and breakaways, did they follow up and see if that did anything?” Adam Lawson, a member of the Zone B Lobster Council, said at the council’s Jan. 15 meeting. “It sounds like no one really knows what the hell is going on.”

“All these years, we always had to compromise,” said lobsterman Jon Carter. “Where has it gotten us?...They’re using data that’s old. They pick and choose. I think it’s time we say, ‘You know what? We don’t like this.’”

“We continue to fight the formula,” agreed Patrice McCarron, executive director of the Maine Lobstermen’s Association (MLA). “It’s wrong. The methodology is wrong.”

Fishermen were responding to a presentation of the Department of Marine Resources’ (DMR) plan, which is itself a response to a federal plan to reduce risk to right whales.

Some fishermen said the DMR plan was viable, except for a section that would require weak points in the vertical line. The thought was that the industry had to take some kind of action that would conform to the government’s original premise, in order to avoid the risk of the fishery being shut down. At the same time, there was a consensus that instituting a system of Maine-specific gear marks would be useful in order to eventually help the industry prove that none of its gear has been implicated in right whale entanglements.

Others said the plan should be dumped and the industry should take a stand against the government.

In response to requirements under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), the DMR submitted a proposal for regulatory changes to the National Marine Fisheries Service (NMFS) in advance of federal rule making.

The proposal includes measures that reduce the presumed risk of an entanglement by North Atlantic right whales in lobster gear from occurring and minimize the potential of serious injury and mortality in the rare event an entanglement occurs.

The proposal also includes measures that improve the data collected about the Maine lobster fishery, designed to enable regulators to develop more targeted, effective measures in the future.

In addition, the proposal includes a provision that allows Maine the flexibility to develop regional measures that achieve conservation benefits equivalent to those in the plan. This was included in recognition of the unique fishing practices, differing oceanographic conditions, and safety concerns along Maine’s coast.

DMR sought input from industry in 10 public meetings last summer. With the input, and further analysis of the data, the DMR concluded that the original advisory plan proposed by the Atlantic Large Whale Take Reduction Team (TRT) in April 2019 would have placed the largest burden on inshore waters where whales rarely venture.

“The impact of the TRTs advisory plan would have created significant safety issues as well as economic hardship for Maine’s inshore fishermen while providing minimal benefits to right whales,” according to a DMR press release.

Further analysis indicated that most risk occurs outside state waters, the release said.

The DMR focused management measures, including vertical line reductions, offshore.

Key elements of the plan include utilization of an existing exemption area, flexibility to account for regional differences in fishing practices, and a gear marking system unique to Maine.

Exemption area

Established in 2007, the Maine exemption line, which encompasses approximately 70 percent of state waters, designates inshore waters where right whale sightings are extremely rare. The DMR’s plan calls for maintaining the status quo with regard to vertical-line use. The DMR cited concerns for fishermen safety and the economic impact of trawling up requirements on small boats that fish inside the exemption line.

The DMR’s plan calls for adding more traps per trawl in areas beyond the exemption line, as follows:

• Exemption line to three miles from shore: Minimum trawl length of three traps per single endline

• Three to six miles: Minimum trawl length of eight traps per two endlines, or four traps per single endline. Longer trawls recognize higher whale sightings in federal waters while the flexibility to fish four versus eight traps supports diversity of fishing practices and ensures equivalent conservation value.

• Six to 12 miles: Minimum trawl length of 15 traps per two endlines, or eight traps per single endline.

• Twelve miles to the Lobster Management Area 3 boundary: Minimum trawl length of 25 traps per two endlines.

Weak links

The DMR proposal calls for a system of weak points to be placed into the vertical lines. Studies show that rope that breaks at 1,700 pounds of pressure will allow an entangled whale to break free. Including a weak point in exempted waters ensures that, in the rare event a right whale enters exempted waters and gets entangled, the encounter will not result in a serious injury or mortality.

• State waters: A single 1,700-pound weak point half way down vertical lines.

• Three to 12 miles: Two 1,700-pound weak points in the top half of all vertical lines.

• Federal waters (beyond 12 miles): One 1,700-pound weak point one-third down the vertical line.

Gear marking

At present, all Northeast trap/pot gear is identified by a red mark. Maine’s adoption of a state-specific mark will help managers more accurately determine the origin of gear involved in entanglement and develop more targeted protection measures.

• Exempt waters: Purple Maine-only mark required at the top, middle, and bottom of the vertical line. The top mark is 36 inches long and must be in the top two fathoms of the line. The middle and bottom marks are 12 inches long.

• Non-exempt waters: Purple Maine-only mark replaces the existing 12-inch red marks at the top, middle, and bottom of the vertical line. In addition, a 6-inch green mark and a 36-inch purple mark in the top two fathoms of the line required.

Gear mark requirements have already been adopted by the state. Lobstermen must have the marks installed by Sept. 1.

Data acquisition

• Harvester reporting: Currently, 10 percent of Maine lobster license holders are required to complete harvester reporting, which provides precise estimates of catch. However, it does not provide the level of information on fishing effort or location needed for current right whale discussions. The DMR proposes 100 percent harvester reporting to close the data gap and provide a complete picture of activity in the Maine lobster fishery.

• Electronic tracking on federal vessels: Maine recognizes that more work needs to be done regarding vessel tracking and is recommending that NOAA work with industry to understand and address fishermen concerns around tracking technologies and costs.

Conservation equivalency

Key to Maine’s proposal, the provision would allow lobster management zones to implement measures that achieve equivalent conservation outcomes. This would enable zones to consider the diversity of the fleet and address safety issues that arise when trawling up and using weak points in vertical lines.

Maine is also asking for flexibility to address safety concerns arising from the federal regulations on an individual basis. For example, some fishermen will not have a boat large enough to safely comply with the new trawling-up requirements, so Maine is requesting the flexibility to develop an individual plan to achieve the same risk reduction at a lower trawling-up scenario.

The council agreed that weak points were the major unworkable section of the plan. They said the system of weak points would be difficult to implement, would result in lost gear, and wasn’t needed. Adding more traps per trawl plus adding weak points, one council member said, was “mathematics for failure.” They pointed out that they’ve already incorporated 600-pound breakaway links with their surface buoys, which was a requirement from previous rounds of talks centered on protecting right whales. They said there’s little data to support the need for 1,700-pound weak points in the vertical line and said the federal government should focus on gathering better data. They said there was no real way to test the 1,700-pound premise.

“They can’t physically do a real test on these whales,” said a council member.

And they said that ship strikes and Canadian fishing gear are the culprits when it comes to whale fatalities and injuries. Although right whales migrate through the Gulf of Maine, they don’t come through inshore waters, they said.

Carter and others called on legislators to do more to help the industry on the matter.

“If you put a picture of whale entangled on rope on the internet, we’re called whale killers – until we can get word out and get some legislators on our side to stand up and do the right thing for a change,” said Carter.

Council member John Stanley and others said the industry should have its own legal representation.

David Horner, chairman of the Zone B Lobster Council, proposed shifting funds from the Maine Lobster Marketing Collaborative to hiring a legal team to defend the industry from conservation lawsuits.

“We’re already kicking in a lot of money for marketing,” said Horner. “Should that be switched to a legal defense fund for the lobster industry? I haven’t found one person in this industry who doesn’t think that’s a good idea.”

McCarron noted the MLA already has a legal defense fund and a lawyer working on the issues.

“We’ve been bringing all this information forward, looking through the data, raising the argument, raising the issue of shipstrikes, Canada, and other gear,” she said. “It’s been an exercise in insanity, but we’ll continue.”

The MLA, she said, doesn’t support the DMR plan and will be putting forward an alternate plan.

“We feel the DMR is trying to achieve the 60 percent risk reduction,” she said. “That doesn’t reflect the risk that our fishery poses. So we feel they’re reaching for the wrong target.”

The MLA is basing its plan on concrete data in order to battle the federal government’s premise, she added.

“It’s been like hitting a cement wall over and over,” she said. “There are no deaths or serious injuries from the Maine lobster fishery, ever.”

Federal regulators, she said, are attempting to link two unrelated facts: that 70 percent of injuries to whales is from rope, and that Maine has the biggest fishery. The two aren’t connected, she said. The evidence of rope entanglement is skewing toward Canada, she said.

“If we can prove our innocence, that would be great, but we might not have the luxury of time,” she said. “Should we fight? Yes.”

She added, “The laws stink. If whales die in Canada and the population goes down, it puts more heat on us.”

The MLA is an intervener in a lawsuit filed by several national environmental organizations to require the lobster industry to adopt more stringent whale protection measures such as ropeless fishing and closures, according to its website. As a court-recognized intervener, the MLA advocates for Maine lobstermen throughout the proceedings, and if and when any settlement is discussed.

“The MLA is fighting NMFS’ over-reaching 60% risk reduction target and the assignment of responsibility for reducing entanglement risk to right whales solely to the lobster fishery,” the website says. “NMFS’ contemplated rules for lobstermen are over-reaching and would have devastating impacts on our fishery and communities.”

It continues, “The MLA’s analysis showed that the NMFS’ stipulated 60% risk reduction is unsupported by the best available data. First, NMFS incorrectly allocated the full responsibility for U.S. risk reduction to the Northeast lobster fishery, ignoring the role of other fisheries known to entangle right whales. Second, NMFS under-represented the role of Canadian fisheries in its calculations by ignoring the most recent entanglement data. Third, NMFS did not investigate trends in right whale entanglement in unknown gear. As a result, the data presented to the Take Reduction Team and fishing industry overstated the share of risk attributable to the Northeast lobster fishery and downplayed the role of other gears and Canada.

MLA’s findings reveal that, from 2010 to 2018, the Canadian snow crab fishery accounted for 31 percent of right whale serious injury and mortality, gillnet and netting gear 13 percent, unknown trap/pot gear 4 percent, and U.S. trap/pot gear 4 percent. U.S. and Canadian vessel strikes account for the remaining 48 percent.

The MLA’s review of the data also revealed that current whale protection measures have been effective. The data show only one confirmed right whale entanglement in Maine lobster gear in 2002, with no known serious injuries or mortalities attributable to that gear. NMFS’ data also show that ropes removed from right whales in recent years are not representative of ropes used in Maine’s lobster fishery

Overall, most council members agreed the DMR plan was acceptable minus the weak points.

For the council and lobstermen in the audience, there was much discussion around how much of the DMR’s plan was workable from the operational, safety, and financial standpoints, along with whether the industry should make those compromises and what would happen to the fishery if the industry didn’t implement the government’s measures. There was also concern about ongoing lawsuits by conservation groups against the federal government, and around whether the government has done enough to protect right whales. Industry members said they feared that, if they take a stand against any new measures, it could result in a court injunction that shuts down the fishery all together.

Whereas previously many in Zone B were willing to work on trawl configuration, “now we’re in the where we want to fight,” said council member Richard Howland. “Now our back’s against the wall and we’re coming out swinging.”

“We coexist in the environment, and we understand the importance of taking care of the environment, but none of this is going to do anything to help marine mammals,” said another fisherman.

Said Carter, “Five years from now they’re going to come back with something else.”