“You can yell at me all you want. I’ve got thick skin, but it’s really the feds who are pushing this.
Maine Department of Marine Resources (DMR) Commissioner Patrick Keliher said this time and again during a series of meetings with the state’s seven lobster zone councils and area lobstermen held in June regarding proposed measures to cut the amount of vertical lines fished by Maine lobstermen in half.
DMR held the meetings with lobstermen to get input on crafting a statewide plan to reduce vertical lines by 50% while balancing safety and economic concerns and maintaining the diversity of Maine’s fleet. The DMR presented lobstermen with 11 “strawman” proposals, which combine various trap limits — from 800 to 300 traps — with minimum traps per trawl requirements based on distance from shore. DMR will hold a second round of meetings with the Lobster Advisory Council (LAC) and Zone Councils in August to get final feedback from the industry on the state’s “preferred options” before submitting Maine’s plan to NMFS in September.
The meetings kicked off with the LAC in late May followed by meetings with Maine’s seven lobster zones in June. “We are holding these meetings outside of the federal regulatory process,” Keliher explained to the LAC. “We have a fair amount of time to develop Maine’s plan as long at the courts don’t get involved.” The National Marine Fisheries Service (NMFS) will hold its own scoping meetings to solicit feedback on the whale plan in July.
The goal of DMR’s June meetings was informational to bring lobstermen up to speed on NMFS’ directive to reduce entanglement risk to right whales by at least 60%. Keliher reassured attendees that “No decisions will be made until the second round of meetings are complete to give zones and the LAC an opportunity to weigh in on all the options.” The new whale protection measures are not expected to be implemented until 2021 when the federal rulemaking process is complete.
A looming question on lobstermen’s minds was why Maine must make such deep cuts when there are so few confirmed entanglements by right whales in Maine lobster gear. The unpopular answer was simple: federal laws require it. Keliher explained that because lobster fishing is permitted by the government, the fishery is subject to additional federal regulations to protect endangered right whales under both the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA).
Under the MMPA less than one endangered right whale may be killed or seriously injured each year due to human causes. The 2018 North Atlantic right whale stock assessment determined that over the last five years an average of 5.5 right whales died annually from human causes; 93% of the incidents were due to fishing gear entanglements and 7% due to ship strikes.
To make matters worse, the right whale population is in decline. The number of right whales has dropped, from 483 in 2010 to 445 whales in 2018. Changing ocean conditions have caused a shift in right whale food sources and distribution patterns, right whale reproductive rates are extremely low, and the overall health of right whales is in decline. The loss of 17 right whales in 2017 increased the urgency to expand whale protection measures to stop the population decline.
The ESA considers all of these factors when contemplating regulation of any federally-permitted activity that has the potential to inhibit the species’ recovery. “NMFS is conducting a Biological Opinion to determine if the lobster fishery could jeopardize the recovery of right whales,” explained Keliher. “Given the dire situation facing these whales, we’ve been told by the agency to prepare for a jeopardy finding.” Five environmental groups sued NMFS in 2017, arguing that the lobster fishery jeopardizes the survival of the species. The court case is still pending.
NMFS held a Take Reduction Team (TRT) meeting in April to develop proposals to strengthen protections for right whales under the federal whale plan. Shortly before that meeting, NMFS announced that fisheries managed under the federal whale plan must reduce the risk of serious injury and mortality from entanglement by 60% to 80%. NMFS’ second in command, Sam Rauch, told the TRT that if they failed to agree upon a plan, NMFS would do it for them. This means that each state (Maine, New Hampshire and Massachusetts) and each lobster management areas (including Area 1 and Area 3) must reduce risk posed by lobster fishing by 60%.
To meet this goal, Maine agreed to remove 50% of vertical lines from the water and fish weak rope on the top portion of vertical lines in federal waters. “Dwight Carver, a lobsterman from Beals Island, did a great job explaining the need to keep our small, inshore boats safe under any new whale rules,” Keliher told lobstermen. Maine is exploring the “Dwight Carver safety exemption” as a ¼ mile buffer from the shore where lobstermen would be exempt from new trawling up requirements. Maine will also mark its vertical lines with a unique color to distinguish them from the gear of other states, mark all Maine lobster gear to the beach, increase the frequency of the marks by marking lengtheners, and implement vessel tracking in federal waters and 100% harvester reporting for all Maine lobstermen.
“If you do nothing, you can be sure that NOAA will do it for you,” Keliher told a crowd of lobstermen at the Zone B meeting. “It’s important for Maine to have a say in how we meet this goal. Maine’s approach should satisfy the mandates of both the MMPA by removing vertical lines and the ESA by shrinking the footprint of the fishery.”
Keliher was quick to point out that Maine successfully squelched proposals put forward by the environmental community to close prime fishing grounds around Mount Desert Rock during late summer and Jeffrey’s Ledge during the fall and winter. “The conservation groups continue to push hard for ropeless fishing,” Keliher noted, “The Maine representatives at the TRT worked tirelessly to get that off the table for this round of rulemaking.” The environmental community continues to hail ropeless fishing as the ultimate solution to the whale entanglement issue.
One question asked consistently by frustrated lobstermen at each meeting was, “Why don’t we just sue them?”
“Maine reserves the right to file a lawsuit if NMFS takes this plan above and beyond what is reasonable or if Maine is required to do more than other fishing areas. But that remains to be seen because the rules are still being developed. Right now, there is nothing to sue over,” Keliher responded. He noted his concern that typically in legal cases the courts give deference to federal agencies. “I was involved in two cases that Maine filed over listing of Atlantic salmon under the ESA. Maine lost both. These cases are very hard to win,” explained Keliher.
Ryan Post, a Zone D lobsterman, disagreed with Keliher. “Maine needs to stand up and say we do not consent. Possibly the only person who could save our industry now is the President of the United States. No one in Maine wants to hurt whales. But we need more science before we just implement something that could wipe us out.”
DMR’s Bureau of Science Director, Carl Wilson, had the daunting task of explaining the 11 strawman proposals generated by DMR that could meet the statewide 50% vertical line reduction. The proposals use combinations of trap limits and minimum trawling up numbers based on distance from shore to take rope out of the water. DMR did not present any zone by zone scenarios. “These proposals were developed to give the industry an idea of what it will take to meet the goal. We did not want to presume what might work for each zone. We are here to get that feedback to help ensure that these whale rules are as flexible as possible,” Keliher emphasized.
Wilson noted that not all scenarios achieve a 50% reduction in vertical lines. To get to that figure, the state can consider expanding the weak rope requirement into state waters or using seasonal closures to gain the extra risk reduction percentage.
In order to calculate the reduction in vertical lines achieved by various proposals, DMR estimated current gear configuration and the fishing effort of active lobstermen using 2017 data from dealer and harvester reporting. The 100% dealer reporting provides data on the number of active versus latent permits and the 10% harvester reporting data is used to estimate the number of traps in the water and trap configurations fished in each zone, by month and distance from shore.
Johnny Smith, a Zone D lobsterman, was frustrated that the state is using estimates of gear in the water. “We need better data to move forward. Come back with real information because these changes are going to affect us for the rest of our lives,” Smith challenged.
Wilson responded that while the data are not perfect, they provide a good representation of Maine’s fishing effort. Keliher agreed that the state needs better data. “Not going to 100% harvester reporting was a mistake. I wish we had that data now to help us with these whale rules. But Maine’s 10% reporting still produces more data than all other states [because of the number of Maine lobstermen],” noted Keliher. DMR plans to implement 100% harvester reporting by 2021, stating it will take that long to fund and develop the program.
Zone A lobsterman Dixon Smith was disappointed to see only one option that maintained the state’s 800 trap limit. Wilson explained that to achieve a 50% reduction in vertical lines with 800 traps would require fishing a minimum of quads in state waters, 20 trap trawls from 3 to 12 miles and 40 trap trawls in waters beyond 12 miles. “We recognize that these trawling up requirements would be very difficult for our fishermen. This is to give you an idea of what it would take to keep 800 traps,” Wilson told the crowd of more than 350 lobstermen at the Zone A meeting. “We need to see more options that keep us at 800 traps if our fishery is going to survive. Managers must consider that vessels operating in federal waters have higher operating costs than state waters vessels,” Smith said.
At the LAC meeting in late May, David Cousens of Zone D asked DMR to develop scenarios that would allow lobstermen to continue to fish pairs in state waters. Wilson stated that to lower the minimum trawl configurations, trap limits would have to come down.
“We need to stress safety and efficiency,” Cousens reiterated at the Zone D meeting in June. “Forty trap trawls are not safe. Lobstering is already the second most dangerous profession. We don’t need to make it the first.” He continued, “And fishing quads on hard bottom is not an efficient use of traps. With the cost of bait, fuel and traps, every trap we fish needs to work.” Many lobstermen from across the state concurred that lobstering 40 trap trawls are a big request to make for offshore boats. Several noted that such large trawls are just too many traps for most boats to handle and that a lobsterman simply can’t see the second end.
Others shared Cousens’ concern about going to quads in state waters. “Zone G lobstermen need singles to fish in the holes and cracks. Is there any way to get a larger exemption so guys can continue to fish?” asked lobsterman Wayne Parry. Several Zone G lobstermen commented that the ¼ mile buffer is not enough in Zone G. They suggested looking at a ½ mile exemption or a ¼ mile from the demarcation line.
Lobstermen in Zone D urged the DMR to look at depth contours rather than using a ¼ mile buffer for the safety buffer. “How would a child know if he was ¼ mile from shore?” a Zone D lobsterman asked. Several lobstermen stated that using depth contours would also be easier for enforcement.
Lobstermen in Zone B had conflicting concerns. Carroll Staples asked, “Can we be more aggressive with trawling up to avoid fishing weak rope and trap limits?” David Horner, chair of the Zone B Council said, “Zone B could live with 600 traps as long as other zones don’t bring traps into the zone.”
At every meeting lobstermen agreed that if they are required to take rope out of the water, the state must ensure that it is not put back in by new entrants or those building into the fishery. Keliher noted that this issue will be taken up by Legislature again in January. “A tiered license system may need to be considered by the Legislature when it looks at waiting lists and new entrants,” he said.
Zone C lobsterman Brian Tripp expressed a sentiment shared by many along the coast. “These DMR proposals are a one-size-fits-all and won’t support fleet diversity. They won’t work.” Keliher stressed that maintaining the diversity of the Maine fleet is a paramount consideration in crafting Maine’s whale plan. “We had unanimous feedback from thousands of lobstermen during our industry meetings in 2012 that maintaining diversity of the Maine lobster fleet was important to the future of this fishery,” he said. DMR wants feedback from each lobster zone on how the state can support regional differences in fishing practices in order to conserve Maine’s diversity of lobstermen and boats. “If you don’t agree on the statewide approach, we need the zones to come forward with a plan that will work for your area,” urged Keliher.
DMR’s goal is to develop a statewide plan that allows for variability within the plan from zone to zone. Zones already have the authority to regulate the number of traps on a trawl and reduce trap limits. But to change zone regulations requires two-thirds approval of all those who vote and takes time.
The Zone E Council voiced support for staying at 600 traps and members said they thought that trawling up to 15’s from 3 to 12 miles and to 30’s outside of 12 miles would be doable for the zone. “If we go to 15’s and 30’s offshore, we would need to have standard-sized buoys and specify direction, maybe require a flag on one end, said Eben Wilson. ” Zone E, however, would not support quads inside state waters. “Using quads is like throwing a trap away,” noted Arnie Gamage of Zone E. “It’s not going to fish.
One Zone D lobsterman expressed his concern over asking so much of lobstermen fishing in state waters. “Where are the entanglements taking place?” he asked. “Taking rope out of state waters may not do shit to save the whales. How does putting regulations in place where there is no problem help the whales?” Carl Wilson explained, “There is a lot more gear set inshore than offshore, orders of magnitude more. It would be impossible to remove half of Maine’s vertical lines by focusing only on the offshore fishery.” He asked a question of lobstermen: “Which is more dangerous, less rope and more whales or a lot of rope and fewer whales?”
Josh Conover of Isesboro was not convinced. “If entanglements don’t go down in five years, won’t they be back again for further reductions?”
In recognition of the different needs of the inshore and offshore portions of the fishery, the LAC asked the DMR to develop scenarios that would allow lower trap limits and smaller minimum trawl configurations in state waters and higher trap limits with larger minimum trap configurations in federal waters.
There were many concerns over how the inshore and offshore portions of the fishery can safely coexist with such large minimum trawl requirements. “We can’t allow 40 trap trawls to shift back inside. We need to look at trawl minimums and maximums to prevent large trawls being dumped on top of guys fishing singles and smaller trawls,” said Zone G lobsterman Chris Welch.
Lobstermen raised a host of other issues for consideration as Maine develops its plan. “You seem to have it backwards,” remarked Rep. Billy Bob Faulkingham during the Zone B meeting. You need to reduce endlines, but you are talking about trap reductions. You should be thinking about limiting the number of endlines instead. Let people fish their number of endlines however they want.”
“We’ve discussed assigning endline tags in state waters. Guys would need to double tag traps fished in federal waters,” Keliher answered.
“Whatever happened to the 10 cents per trap tag that was supposed to go to study whales? Why hasn’t more been done?” asked Rocky Alley at the Zone C meeting. “We need to take the money from the Maine Lobster Marketing Collaborative (MLMC) to study where the whales are and prove that they are not here.” Keliher explained that the MLMC is required by statute to support marketing of Maine lobster; its funds cannot be reallocated without a change in the law.
John Drouin from Zone A asked if the state has considered an exemption for Gray zone lobstermen. “How can we fish weak rope with Canadians fishing on top of us with strong endlines and float rope?” he asked. “If it works for Canada in whale habitat it should work for us. Gray zone guys will set on top of us to drive us out.”
Many lobstermen asked for clarification on what constitutes weak rope. Keliher explained that it must break at 1,700 pounds. “All creative ideas are on the table to reach the 1,700 pound weak rope requirement. We hope to develop a suite of options similar to what was done for weak links. Weak rope equivalencies such as using a certain splice in 3/8” rope would need to be approved under the whale plan,” he explained. Greg Turner from Zone G suggested that the state consider using one weak endline as a tagline and keep the second end strong to ensure that the gear can be retrieved.
Another common theme raised by many lobstermen from across the state was whether the new whale measures would impact recreational license holders. “The federal rules do not impact them but we’ve heard that concern from a lot of lobstermen and will look into it,” Keliher responded. “Keep in mind that there are only 2,000 recreational lobster licenses limited to five tags each likely fishing within the safety buffer.”
Occasionally a lobsterman would voice an optimistic point of view. As the Zone A meeting wrapped up, Mike Sargent of Steuben noted, “We are looking to the Zone A council to find strategies that will work for Zone A. The important thing is that Maine lobstermen will still be able to fish under this plan. We will take a hit, but we will adjust and we will continue to fish.”
Throughout the meetings, Keliher listened and responded to the concerns and fears raised by lobstermen in each zone. He acknowledged that crafting a fair plan that meets NMFS risk reduction goal will not be simple. “It would have been a lot easier for Maine to just put together a plan and hand it off to the feds,” Keliher told Zone C lobstermen. “[Doing it in collaboration with lobstermen] makes it more difficult but I am here because I am willing to have this conversation with the industry.”
The Commissioner closed out each meeting by challenging each zone council member to discuss the strawman proposals within their districts and generate ideas that might work better for that particular zone. He invited each zone council to submit alternative proposals for their zone to DMR by July 15. Zone council members are also welcome to meet with DMR’s science staff to run various ideas through the risk reduction model. DMR will take this feedback into consideration and identify preferred alternatives to bring to the zone councils for discussion in August.
Zone G Chair Steve Taylor had his own homework assignment for his fellow zone council members at the close of that meeting. “Go home and kick your buddy in the ass for not showing up. This room should have been filled wall to wall. This is our livelihood.”