Groups Threaten to Sue Over Right Whale Decline

In early October, four environmental groups officially served a 60-day notice to the U.S. Department of Commerce that they plan to sue for violations of Sections 7 and 9 of the Endangered Species Act (ESA) due to the unprecedented number of North Atlantic right whale deaths this summer and the whales’ declining population estimates. The letter from the Center for Biological Diversity, Defenders of Wildlife, Humane Society of the United States and Whale and Dolphin Conservation North America alleges that the National Marine Fisheries Service (NMFS) is in violation of “Section 7 of the ESA because it is failing to ensure that the ongoing operation of the American lobster fishery is not likely to jeopardize the continued existence of North Atlantic right whales. NMFS’s violations stem, in part, from its reliance on a 2014 biological opinion that purports to analyze the effects of the American lobster fishery on right whales.”

The lobster fishery’s interactions with right whales are managed under the Marine Mammal Protection Act (MMPA) through the Atlantic Large Whale Take Reduction Plan, commonly referred to as the “whale rules.” However, right whales are also protected under the very strict guidelines of the ESA. Section 7 of the ESA mandates that a fishery authorized by NMFS does not “jeopardize” the survival of the species or its habitat. Section 9 of the ESA prohibits the “taking” or harm of an endangered species without authorization through an incidental take permit. The environmental groups argue that because NMFS sanctions the lobster fishery in New England, the agency has “caused and will continue to cause the unpermitted take of endangered North Atlantic right whales in violation of Section 9 of the ESA.”

“I am worried about what this could mean for Maine’s lobstermen,” said Patrice McCarron, executive director of the Maine Lobstermen’s Association. “The unfortunate deaths of right whales last fall and this summer happened in Canada’s snow crab fishery which does not operate under the strict regulations that American lobstermen have fished under since 1997. It looks like those right whale deaths could affect all of us. MLA is consulting with our lawyers and tracking this closely.”

Section 7 of the ESA requires that federal agencies work together to ensure that any actions undertaken do not jeopardize the survival of an endangered species. To do this, agencies may undertake a formal consultation and prepare a biological opinion to determine the extent to which the federal action will affect the species’ survival. For the lobster fishery, the Protected Resources branch of NMFS must consult with the Sustainable Fisheries division of NMFS to determine whether the continued operation of the lobster fishery will jeopardize the survival of right whales. The last biological opinion on the lobster fishery was completed in 2014. NMFS determined that because the Whale Plan was in place, the operation of the lobster fishery did not jeopardize the survival of right whales. The document concludes, “…it is our [NMFS’s] biological opinion that the proposed action [lobster fishing] may adversely affect, but is not likely to jeopardize, the continued existence of North Atlantic right whales.”

The four environmental groups disagree and argue that the 2014 biological opinion on the lobster fishery is flawed in many significant ways in violation of both the ESA and the MMPA. The letter asserts that NMFS violates Section 7 by authorizing the lobster fishery. The agency violates Section 9 because it does not authorize any incidental take permits for right, humpback, fin, and sei whales since those permits are not authorized under the MMPA.

While the environmental groups acknowledge that New England lobstermen have done much in recent years to minimize right whale entanglement in their gear, the letter concludes “… it is now clear that more must be done to protect the right whale and save it from extinction. Our groups fully intend to engage on this issue from within the TRT [Take Reduction Team] process; however, we believe the time has come to involve the judicial system to move right whale protections forward in an expeditious manner.”

The groups invite NMFS to contact them to discuss options to avoid litigation. On October 20, NMFS announced the completion of a 5-year review for the North Atlantic right whale which assessed development science and management for the species over the period of 2012-2017. The review concludes with a series of recommendations to guide NOAA in pursuing the recovery of the species over the next five years. In conjunction with the completion of this review, NOAA announced the reinitiation of consultation under Section 7 for commercial fisheries that interact with right whales.

NMFS has conducted ten formal consultations on the lobster fishery—in 1988, 1994, 1996, 1997, 1998, 2001, 2002, 2010, 2012 and 2014. Two of those biological opinions—1996 and 2001 —concluded that the operation of the lobster fishery would jeopardize the continued existence of right whales. In order to permit the lobster fishery, NMFS immediately implemented Reasonable and Prudent Alternatives (RPA) to protect the whales. The 1996 RPA was the seasonal closure of the Great South Channel critical habitat to lobster gear. Th at RPA was supplemented by the first large whale plan (ALWTRP) in 1997. The 2001 biological opinion resulted in an RPA that implemented, in part, the Seasonal Area Management (SAM) and Dynamic Area Management (DAM) programs through the ALWTRP. These were ultimately replaced by the sinking line rule implemented in 2009. NMFS has until December 2 to formally respond to the official letter.

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