Federal Ruling on Right Whales Deemed “Daunting” by Lobster Industry

by Laurie Schreiber

Seen here is a Maine Lobstermen’s Association graphic showing the industry’s efforts to protect the endangered North Atlantic right whale. Courtesy of Maine Lobstermen’s Association.

On April 9, U.S. District Judge James Boasberg ruled the National Marine Fishery Service (NMFS) violated the Endangered Species Act (ESA) when it authorized the American lobster fishery without appropriately analyzing its impact on right whales.

In a response issued April 13, Maine Lobstermen’s Association (MLA) Executive Director Patrice McCarron said the lobster industry is committed to saving both right whales and fishing communities.

“But make no mistake, this is a daunting challenge,” she said of the ruling.

In a letter to the industry issued April 10, Department of Marine Resources (DMR) Commissioner Patrick Keliher said it was difficult to predict how the decision will impact future whale rules.

“Many of you have called or emailed asking about the timing and impacts of this decision,” he said. “At this time they are still unknown, but may come very quickly.”

The DMR is reviewing the decision to determine what it means for Maine’s lobster industry and what next steps Maine can take.

“To be clear, the judge’s decision does not impact your ability to fish at this time – Maine’s lobster fishery remains open,” he wrote.

He added, “I know you have many questions and want answers, and frankly we are in the same boat. These answers will come in time as we determine what direction the judge will go. All I can ask, as hard as it will be, is to please be patient as we work with our legal team on determining our path forward.”

The court case was brought against NMFS by four environmental groups, and was split into two phases.

The first phase was completed April 9 when the court ruled NMFS violated the law.

The second phase is expected to focus on identifying any new whale protection measures needed to remedy risk to right whales so that the American lobster fishery continues to operate in compliance with the ESA.

In June 2018, the MLA intervened in the case to ensure its members would be represented if the case moved to Phase 2.

“Until now, the court has only heard from the environmental groups and the federal

government,” McCarron said in the MLA statement. “They have not yet heard the fishing industry’s perspective. Now that it is time for the judge to consider evidence about what happens on the water to protect whales, the MLA will bring the voice of Maine’s lobstermen to the court.”

As an intervener, the MLA has full standing in the case to represent its members.

“The MLA and its legal team are uniquely positioned and well prepared to educate the court on the Maine lobster fishery’s longstanding efforts to protect right whales and insist that decisions that affect our fishermen are based on the best available science,” said McCarron. “Right whales are in decline and the MLA has been working diligently with the Take Reduction Team, NMFS, the state of Maine and our fishermen to mitigate risk of Maine’s lobster gear to right whales.”

In his decision, Boasberg wrote that the fishery service’s failure to include an incidental take statement after finding that the fishery had the potential to harm right whales at three times sustainable levels was “about as straightforward a violation of the ESA as they come.”

The lawsuit centered on NMFS’s responsibilities under the Endangered Species Act and the Marine Mammal Protection Act to protect endangered North Atlantic right whales.

Plaintiffs in the case were Conservation Law Foundation (CLF), Center for Biological Diversity, Defenders of Wildlife and Humane Society of the United States. They argued that NMFS unlawfully allowed the lobster fishery to operate, terming the fishery’s vertical ropes a threat to right whales along the East Coast.

In an April 9 statement, CLF Senior Attorney Erica Fuller said, “The ruling provides an incentive for fishermen and scientists to forge a new path that protects right whales while also sustaining the lobster industry.”

The lawsuit is one of two that CLF filed in the U.S. District Court for the District of Columbia in 2018 to later fishing practices. In October 2019,Boasberg ruled that opening waters south of Nantucket to gillnet fishing was illegal in the absence of appropriate analysis.

Through its Legal Defense Fund, MLA is fighting a NMFS plan to substantially reduce the amount of vertical lines in the water.

According to an MLA website post, “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.”

It added, “The MLA’s review of the data also revealed that current whale protection measures have been effective. Changes to the right whale plan in 2009 and 2014 resulted in a strong downward trend in the incidence of entanglement cases involving U.S. lobster gear from seven cases prior to 2010 to only one case, a non-serious injury in Massachusetts lobster gear, since then.

“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.”

According to NMFS, there are only about 400 North Atlantic right whales remaining, with fewer than 100 breeding females left. There were an unprecedented 30 mortalities since 2017. The downward trend began around 2010, with deaths outpacing births.