Lobstermen Remain Frustrated Over state’s Proposed Whale Rules

“I’m sick of it, Maine is not killing these whales,” announced lobsterman Peter Eaton of Cape Porpoise. His words captured the frustration voiced by many of the state’s lobstermen over the latest iteration of the Department of Marine Resources’ (DMR) proposed whale plan.
DMR officials got an earful from lobstermen as they travelled the coast in January and early February to discuss the agency’s proposal to reduce the risk of Maine lobster gear to right whales through new gear marking and other proposed requirements. Hundreds of lobstermen attended the meetings to express their concerns over DMR’s latest plan, which they say is too complicated and will not work for many.

Zone C Lobster Council members and local lobstermen listen to Department of Marine Resources staff review elements of Maine’s whale plan. MLA photo.

DMR’s director of external affairs Megan Ware and director of protected resources Erin Summers walked lobstermen through the details of the state’s new gear marking requirements, which must be implemented by September 1, and of the proposal to trawl up traps and weaken remaining endlines. DMR’s plan was recently submitted to National Marine Fisheries Service (NMFS) for review. DMR does not know if the measures will be approved but does not expect any new whale rules — other that Maine’s gear marking requirements — to be implemented before 2021.
“We don’t know if the plan will be accepted, but at least Maine will have something on record if the courts move forward. And NMFS has something to consider, which we hope they can use to avoid a jeopardy finding against the lobster fishery in the Biological Opinion,” said Ware, referring to the Endangered Species Act Section 7 requirement. According to DMR, the Biological Opinion is expected to come out in early 2020.
“The courts are the wildcard,” Commissioner Keliher told the Lobster Advisory Council at its meeting in January. “The state will file an amicus if there is any action in the court [in a case filed by environmental groups against NMFS]. And the state is submitting briefs in the court case in Bangor against Maine filed by Max Strahan.”
Lobstermen expressed much anxiety over the details of the DMR whale plan. While the gear marking measures are a done deal, the rest of the plan is still a proposal. DMR has asked the zone councils if there are any changes that would make the plan more workable in each zone through conservation equivalencies. “DMR’s plan built in a conservation equivalency so that zones could swap out measures that may not work in a particular zone with ones that make more sense based on local fishing practices,” explained Ware. “Zones can swap out and change measures, but they must achieve the same level of conservation.”

New Requirements – Gear marking
Maine preempted the federal whale plan by putting in place expanded gear marking requirements for the upcoming fishing season. Maine lobstermen have until September 1 to implement Maine’s new gear marking requirements. Between now and then, both the old and new gear marking schemes will be compliant.
According to NMFS, approximately 75% of all right whale entanglements are caused by rope that cannot be traced to any particular fishery or region. Summers and Ware explained that by requiring all Maine lobstermen to mark their rope with purple marks, Maine will obtain more robust data to show the extent to which Maine lobster gear is — or is not — involved in right whale entanglements. By switching to purple, Maine will distinguish itself from the Massachusetts, New Hampshire and offshore sectors of the lobster fishery, which in some areas have a much higher overlap with right whales. “Maine is being held accountable for the unknown rope taken off right whales and we have no way to prove that it is not our gear. With this gear marking, hopefully we won’t be blamed for those entanglements in the future,” explained Summers.
For the first time, lobster buoy lines fished inside Maine’s exemption line must have three marks, to include a 36” purple mark within top two fathoms, a 12” purple mark midway, and a 12” purple mark at bottom.
Trap gear fished outside Maine’s exemption line must be marked in much the same way as before, but with purple instead of red, and two additional marks for a total of five marks on each buoy line. The marks must include a 36” purple mark and 6” green mark within top two fathoms, plus a 12” purple mark at top, middle, and bottom of each buoy line.


Due to the wide variety of surface system configurations used by lobstermen, there were many questions about what DMR considered the “top two fathoms of the buoy line.” Summers and Ware clarified that the 36” purple mark and 6” green mark may be placed within two fathom of any buoy that is always on the surface. And DMR does not have a preference regarding the order of the green and purple marks at the top.
They also clarified some do’s and don’ts when it comes to rope marking. An endline made entirely of purple rope does not count as a gear mark. Ware explained that since DMR cannot prevent fishermen from other states from fishing purple rope, this rope much also contain the required purple markings. If a purple rope is performing a function other than a mark (i.e. a purple line to a toggle), then it is also not considered a mark. However, purple rope of the required length (i.e. 36” or 12”) can be added to an endline of a different color to serve as a purple mark.
Summers and Ware urged lobstermen to remove or cover existing red markings to the extent possible. If rope is currently marked with twine or wire ties, those should be removed. If rope is painted, lobstermen should paint over it. The goal is to differentiate Maine so the best thing is to convert all markings to purple. They also clarified that the green mark cannot be fished in exempt waters. If gear is shifted back and forth across the exemption line, the green mark must be removed. However, lobstermen may have more than the three required marks if they are shifting gear into exempt waters or adding lengtheners as they move into deeper water.
Lobstermen facing gear marking requirements for the first time expressed frustration over the mandate for three marks on every line. “Do we really need three marks in a 10 Fathom line?” lobsterman Robert Beal of Beals asked at the Zone A meeting. Asking more of shoal water lobstermen didn’t make sense to him since there are no whales in those waters. “Inshore fisherman may have to mark 600 endlines while offshore will have to mark far less because they fish trawls,” he said.
Many of the questions revolved around the requirement for the 36” mark at the top of the line and the need to remove the 6” green mark from gear fished in exempt waters, since many across the state shift gear back and forth across that line daily. “The top two fathom is the slimiest part of the line,” noted John Drouin of Culter. “Who’s ever going to see that? And from a plane? That will never happen. This is a waste of time.” Dick Larrabee Jr. of Stonington asked, “I wonder why the state made it so confusing and so difficult? This is stupid.”
It is important to distinguish gear fished in exempt waters from non-exempt waters because there is pressure to eliminate the exemption line, said Ware. “We don’t want to lose floating groundlines or singles in this area, and we know that whales are very rare there,” she explained. The green mark can be a simple solution, such as a green zip tie or tag that can be easily removed or added when shifting gear.
“I don’t like it but looks like we’re not going to change it. So let’s move on and prove our innocence,” said a Zone B lobsterman, referring the gear marks.

DMR Proposed Whale plan – Trawling up
In addition to the required gear marking, DMR has a two-pronged proposal to reduce risk to right whales from the Maine lobster fishery. First, DMR proposes to remove rope through trawling up, reducing risk by an estimated 24%. Second, the state proposes to require the remaining endlines to contain weak points, bringing the state’s risk reduction to an estimated 52%. Maine’s proposal has been submitted to NMFS for consideration, however, DMR won’t know if the plan has been accepted, rejected or altered until NMFS releases its draft rule, likely in late spring or summer.
To remove rope from the water, DMR proposed a tiered suite of trawling up measures, or minimum trawl lengths, for lobster gear which increase as gear is fished further from shore.

  • Shore to the exemption line: no minimum trawling up requirements.
  • Exemption line to 3 mile line: minimum of 3 traps per single endline.
  • 3 mile line to 6 mile line: minimum of 8 traps per two endlines, or 4 traps per single endline.
  • 6 mile line to 12 mile line: Minimum of 15 traps per two endlines, or 8 traps per single endline.
  • 12 mile to the Area 1 and 3 line: Minimum of 25 traps per two endlines.

DMR’s proposal has been scaled back significantly from an earlier version discussed in June, which included much more aggressive trawling up requirements and trap reductions all the way to the beach. The current proposal is similar to the DMR’s draft proposal presented to lobstermen in November, with a few adjustments based on safety and operational concerns raised by lobstermen.
DMR’s proposed whale plan will continue to allow singles to be fished from the shore to the exemption line, therefore there are no longer exemptions or buffers proposed for this area. These waters were excluded from trawling up measures because right whale sightings are extremely rare and of concerns for fishermen’s safety and the economic impact of trawling up on small boats fishing in this area.
The state has proposed that, beginning at the exemption line, trawl length increase as gear is fished further from shore to account for increased probability of right whales. DMR has built in flexibility by allowing trawling up minimums to be cut in half if fished with a single endline to support diverse fishing practices.

Lobsterman Peter Eaton emphasizes his point at the Zone G Council meeting. MLA photo.

A common fear expressed by many lobstermen is that these trawling up measures are going to change the Maine lobster fishery. Lobstermen will have to get bigger boats capable of safely handling 25-trap trawls outside in rough conditions. “Larger trawls need larger boats,” noted Nick Page of Boothbay. Boats that are not quite big enough to handle 25’s will return to inshore areas and create a lot more pressure and congestion closer to shore. Not only will there be more gear fished closer to shore, it will be heavier gear rigged in longer trawls fished around many of the smaller operations.
“Guys will not break up long trawls to come back inside. If it were 20’s, we could break then into tens. But 25’s will just be moved back in to the 3-mile line,” explained Jon Nunan of Cape Porpoise. “You’re setting up a war between fishermen by allowing 25-trap trawls to come inside,” added Steve Taylor of Kittery. Lobstermen in Zone E and Zone G expressed strong concern for the safety of smaller boats running small gangs of gear if they have to fish around long trawls. “We need to be thinking about the safety of guys in smaller boats fishing triples. They’ll never get their gear up if they are set over by large trawls,” commented Chris Welch of Kennebunk.
“We don’t want to see those big trawls run all the way inside,” stated Chuck Plummer of South Bristol. “In Zone E, we need to talk about limiting the size of those trawls as they come in.”

DMR Proposed Whale plan – Weakening Endlines
In addition to minimum trawl lengths, the state has proposed that the remaining endlines be rigged with weak points, including those fished in exempt waters. According to DMR, studies show that rope that breaks at 1,700 pounds of pressure will allow an entangled whale to break free.
DMR has proposed three tiers of weak points, based on where endlines are fished.

  • State waters: One 1,700-pound weak point halfway down vertical line.
  • 3 mile line to 12 mile line: Two 1,700-pound weak points in the top half of all vertical lines (positioned a 1/4 way and ½ way down the line).
  • 12 mile to the Area 1 and 3 line: One 1,700-pound weak point one-third of the way down the vertical line.

Lobsterman Peter Eaton
emphasizes his point at the Zone G Council meeting. MLA photo.

Adding weak points to longer trawls was met with vigorous opposition from nearly every lobsterman who spoke at the meetings. Lobstermen from every zone questioned how they would be able to retrieve their gear with weak points half down the buoy line. “No one is going to put $20,000 of gear on a kite string. There’s just no way. Common sense has gone right out the window,” Eric Beal of Milbridge told DMR.
Ware explained that DMR has heard these concerns, especially from lobstermen fishing outside of 12 miles. DMR reviewed load cell data which measured the strain on rope in the hauler on lobster boats. These data showed that trawls of twenty traps or more fished in waters deeper than 100 fathom exceeded the 1700 pound load. Based on these results, DMR reduced the proposed weak point requirement for gear fished outside of 12 miles to one weak point fished further up the line.
That did not appease lobstermen contemplating how to haul gear with a weak point located half way down the line. “Are you really asking shoal water lobstermen to put weak points in the rope?” asked Bryant Kennedy of Steuben. “The greatest load is when gear is hung down. It doesn’t matter if it’s trawls or triples. When that amount of strain is on the line, these weak points will be a problem,” explained a Zone B lobsterman. Ware and Summers responded that including a weak point in buoy lines fished in exempt waters ensures that, in the rare event a right whale enters these waters and encounters gear, the whale will have a strong chance of breaking free of the line.
Many lobstermen asked why DMR shifted from considering weak rope toppers to weak points in the line. “What happened to running a 11/32” topper?” asked John Drouin of Cutler. Others asked why DMR was no longer discussing 3/8” line with a knot or splice, which had been considered at previous DMR meetings and had support from many lobstermen. “After the last meeting, I thought we were going to be all set with 3/8” rope with a knot or splice in it,” Bar Harbor lobsterman Jon Carter said. “Now you’re asking us to put weak points down the line?”
“The original proposal coming out of the Take Reduction Team [in April] asked for the top 75% of the buoy line to be fished with weak rope,” explained Summers. “Lobstermen said they couldn’t do that so we tested a variety of ropes and found that ropes of the same diameter had different breaking strengths based on brand, age and other factors.” It’s known that rope strength will weaken over time. Using weak points instead of mandating weak rope, according to DMR, will create more options and flexibility for lobstermen while maintaining the full 1700 pound strength of the weak point of the line over time.
There was much confusion and frustration over what DMR considered a “weak point”. DMR worked with lobstermen to test a bunch of ideas on how to weaken rope. “We broke knots, splices, dogbones, pieces of rope spliced in, sleeves and other configurations. If anyone has an idea on rigging a weak point, we want to test it,” Ware told lobstermen. DMR will soon deploy submersible load cells with lobstermen to measure the load on the line where the weak points would be inserted.
DMR is working with lobstermen to create a toolbox of ways to rig a weak point. “DMR is still testing ideas. It looks like 5/16” line will probably pass muster, but 11/32” and 3/8” would need to be used in combination with specific knots or splices and it would depend on how those are done. We have to demonstrate that the weak point will consistently break at 1700 pounds. A straight piece of 3/8” will not work,” stated Ware.
John Drouin captured the sentiment of many lobstermen with regard to weak points. “We can’t do weak points at ¼ and ½ way down the line. We will need to add extra line on top to account for the strain. We could probably do one 1/3 of the way down.” Many lobstermen noted that weak points will cause rope to part, resulting in an expensive loss of traps for lobstermen and lots of ghost gear littering the ocean.

DMR Proposed Whale plan – Conservation Equivalency
A keystone in Maine’s proposed plan is allowing conservation equivalencies. This means that lobster zone councils could use their authority to implement measures that achieve conservation outcomes equivalent to DMR’s plan. If a zone finds a provision of the DMR’s plan particularly troublesome, the zone could propose an alternative conservation measure in its place. This would enable zones to preserve the diversity of the fleet and address safety issues that arise when trawling up and using weak points in vertical lines.

DMR is also asking within its proposed plan for flexibility to address safety concerns arising from the federal regulations on a very limited, individual basis. For example, if a fisherman does not have a boat large enough to safely comply with the new trawling-up requirements, Maine has asked for the flexibility to develop an individual plan to achieve the same risk reduction in a lower trawling-up scenario.
DMR’s lobster zone coordinator, Sarah Cotnoir, urged zone councils to begin discussions on the potential need to develop a conservation equivalency. “If you think the weak points won’t work for your zone, you could talk about doing something else instead, such as additional trawling up, tag lines, trap limits or closures. You know what makes the most sense for your zone,” she said.
Lobstermen reacted to this idea with cynicism. “We’ve already tried that. NOAA didn’t listen, the state didn’t listen. Why would we expect anyone to listen now?” commented Zone C chair Jake Thompson of Vinalhaven. Richard Howland of Islesford expressed similar frustration. “We’ve already met with DMR, came up with ideas, stressed safety concerns. Seems that no one is listening so why bother?” he said. “Why are we discussing changes to the plan when we don’t even know if NOAA will accept it?” asked Chuck Plummer of South Bristol.
There were also many questions about the equity of the DMR’s proposed plan. A Zone A lobsterman asked, “What about guys who are already fishing single-ended 15’s [where four’s are proposed]? Do they have to do anything in other areas?” “Why isn’t Zone E getting credit for fishing 25% fewer traps than everyone else?” asked a Zone E lobsterman.
Others worried that DMR’s proposal is not focused on the real problems. “Why aren’t we doing things that matter like changing configurations at the surface where a whale might actually get caught up?” asked a Zone B lobsterman.
DMR cautioned that zones should not wait to start discussing conservation ideas. If DMR’s proposal is accepted by NMFS, zones will want to be ready to put forward changes. “DMR is happy to run scenarios to look at how much credit you gain through alternative measures and can assess how much you may be able to pull back on other measures,” said Summers. “But if you want to remove weak points, you need to propose a trade-off to make up that percentage of lost risk reduction.
By the end of each meeting, lobstermen softened to the idea of conservation equivalencies and were cautiously optimistic about rethinking weak points or 25-trap trawls in offshore waters. Cotnoir explained that finetuning conservation equivalencies will be a multiple meeting process. Zone reps are encouraged get feedback from local lobstermen. DMR will meet with the Lobster Advisory Council again next and return to the zones to continue discussions.