Steaming Ahead

The discussions about what the new whale rules will be has been heating up this winter. In March, the Department of Marine Resources (DMR) began talking with lobstermen in preparation for three public meetings on the whale rules to be held on April 8, 9 and 10. The issue is an extremely complex one involving the Marine Mammal Protection Act and the Endangered Species Act as the legal framework and the Atlantic States Marine Fisheries Commission (ASMFC), National Marine Fisheries Service (NMFS), Atlantic Large Whale Take Reduction Team and all of the East coast states as managers. Plus, there is a court case pending in Washington D.C.
Given all this the bureaucratic confusion, lobstermen naturally want to cut to the chase. “If there are no recent confirmed right whale entanglements in Maine lobster gear, why do we need to do anything?” they wonder. “Who is standing up for us and telling the government that enough is enough?”
The Maine Lobstermen’s Association is. The MLA is present at all of the whale meetings and you can be sure, we are not sitting there silently. At whale management meetings, we have already said “No” to ropeless fishing and to a mandate for 1,700 pound weak rope for everyone. At industry meetings, we are listening to lobstermen’s feedback on what will work for Maine. And the MLA is an intervener in the court case so that the Maine lobster fishery will have a voice if any decisions are made through the court.
But even as we fight for Maine lobstermen to continue to fish, that does not mean that Maine will not have to do something. The Maine lobster fishery is not the smoking gun when it comes to whale entanglement. In fact, there is no smoking gun (other than Canadian snow crab gear). Unfortunately, there is no clear solution on how to ensure the continued survival of right whales.


From 2010 to 2018, there were 46 right whale serious injuries or deaths due to fishing gear entanglement. In 78% of the cases, the origin of the gear was unknown. The 22% that are known include eight in Canadian snow crab gear, one in unknown U.S. gear, and one in U.S. trap gear. The problem is that any fishery with rope in the water is potentially part of the unknown gear that is harming right whales. Our industry fishes a lot of rope. So the Maine lobster fishery, along with every other fixed gear fishery on the Atlantic coast, must work together to reduce that 78% figure.
Solving this problem will take place on two fronts. First, the ASMFC is considering measures to reduce the likelihood that a whale will get entangled in lobster gear. The Commission is considering actions to reduce the amount of buoy lines in the water by up to 40%. This could be achieved by trawling up, endline caps, trap reductions or closures. The ASMFC Lobster Board is scheduled to meet on April 29 in Arlington, VA, to vote on which approaches will be considered in the lobster management plan. Those options then will go out for public comment during the spring or summer. The implementation date for the amended lobster management plan is 2020.
Second, the Take Reduction Team is considering measures on how to reduce the likelihood that a whale will become seriously injured or killed if it becomes entangled in fishing gear. The TRT is considering measures such as gear modifications to allow whales to break out of rope more easily, closures and ropeless fishing. For its part, Maine is considering options to cap rope diameter in state waters, fish smaller diameter rope on the top portion of the buoy line in federal waters and is testing the use of time tension line cutters as a potential option where stronger rope is needed. A real challenge in identifying whale rules that will have a positive impact on whales is figuring out how and where the lobster industry is fishing. As a result, it is anticipated that the timeline for 100% harvester reporting for Maine lobstermen will be accelerated before the scheduled 2024 implementation date.
Also under consideration is adopting a unique mark for Maine lobster gear in order to distinguish Maine from other lobster gear and marking exempt gear to ensure that all Maine lobster gear is marked. There is also a push to add more marks to gear to increase the likelihood of finding a mark if that gear ends up on a whale. The Take Reduction Team is meeting April 23 to 26 in Providence, RI. Based on the outcome of the TRT meeting, NMFS will begin rulemaking to implement changes to the TRT whale plan. Due to the slow pace of federal rulemaking, implementation would take place in 2020 or 2021.
There are two wild cards in all of this: the outcome of the Biological Opinion currently being drafted by NMFS and the potential for action through the court. Under the Biological Opinion, NMFS will assess whether the American lobster fishery, as well as all other fixed gear fisheries on the East coast, has the potential to entangle a right whale. If the answer is yes, NMFS will make a determination of “jeopardy” and will produce a list of “reasonable and prudent alternatives” that the fishery must consider so that it may continue to operate without hindering the recovery of right whales.
The hope is that the combination of measures put forward through the TRT for gear modifications and by the ASMFC for vertical line reductions will be enough to avoid NMFS requiring additional management measures when it releases the Biological Opinion. However, if NMFS does not believe that the fishery has done enough to reduce the risk to right whales, the Biological Opinion will prescribe additional measures to reduce the risk the fishery poses to right whale recovery or the fishery will risk being shut down. So take note: If you think we can fight through this next round of the whale rules without changing the way we fish, you risk allowing NMFS to make that decision for you and for all Maine lobstermen.
Our job is to make sure that the types of changes we make actually help whales and reflect the level of risk that our fishery poses. The Canadian snow crab fishery will continue to operate with a combination of static and dynamic closures when the whales arrive in the Gulf of St. Lawrence each summer. Massachusetts will continue to operate with its winter closure in Cape Cod Bay and may face new closures because hundreds of right whales now gather there to feed each year. Some of these fishermen favor ropeless fishing because it could give them the ability to fish during the closure period. But these are not solutions that make sense for Maine because we do not have feeding aggregations of whales. Maine’s job is to focus on how to reduce the amount of rope we have in the water column and ensure any whale that might encounter Maine lobster gear has a strong chance of breaking free without serious harm.
Do Maine lobstermen want to take control and recommend whale protection measures that continue to allow us to make a living? Or do you want to simply say “No” and leave it to NMFS to decide what those regulations shall be?
I favor going on the offensive, not playing defense. I urge you to attend DMR’s April meetings to discuss changes lobstermen can live with. We need your feedback because our fishery is very diverse and one solution or approach will not work for everyone. We can help the state fight for a plan that lobstermen can live with and pre-empt a more draconian management approach from NMFS as part of the Biological Opinion.
The MLA remains a leader in the lobster industry and will continue to advocate that lobstermen work together to control their own destiny. It’s hard work, but this is an fishery worth fighting for.
As always, stay safe on the water.