The United States has some of the most stringent environmental protection laws in the world. Those laws, which ensure we have clean water and air, also ensure that plant and animal species are protected for future generations.
Two of those laws directly affect lobstermen. Congress enacted the Endangered Species Act (ESA) in 1973 to halt and reverse the trend toward species extinction. Similarly, the Marine Mammal Protection Act (MMPA) sets an international standard for conservation of marine mammals. Maine lobstermen are known for their conservation and stewardship practices when it comes to sustaining the lobster fishery and for nearly a quarter of a century Maine’s lobster industry also has implemented conservation measures to protect endangered whales.
The Atlantic Large Whale Take Reduction Plan (TRP) or “whale plan,” as it is referred to by most lobstermen, lives under the MMPA. There is a long list of conservation measures lobstermen have had to follow under the whale plan, such as weak links, gear marking, sinking groundlines and minimum traps on a trawl in addition to prohibitions on wet storage of gear and floating line between traps or at the surface.
After being subject to the whale plan for many years, most lobstermen understand that the MMPA requires the lobster fishery to avoid the serious injury or death of right whales that would exceed the potential biological removal (PBR) rate, which is currently 0.8 whales annually, or four whales over a five year period. Their efforts have paid off; known entanglement of right whales in New England lobster gear has declined by 90% since 2010, and the last known entanglement in Maine lobster gear was back in 2002.
Then there’s the ESA. Over the past few years, lobstermen have become familiar with the ESA because North Atlantic right whales are among the most critically endangered marine mammals in the world. In 2017, the National Marine Fisheries Service (NMFS) completed its Five-Year Review of right whales and reinitiated consultation on the American lobster fishery under Section 7 of the ESA to determine whether the lobster fishery is likely to jeopardize the continued existence of right whales. NMFS has revised the timetable for its release several times, and now expects to publish the draft in late summer or early fall. The final biological opinion, along with final whale rules, is expected by the end of May 2021.
The biological opinion is critical to the future of the lobster industry because the ESA does not allow the permitting or authorizing of any actions that are likely to jeopardize the continued existence of listed species. If there is the potential for jeopardy or harm to the species, the biological opinion will include “reasonable and prudent alternatives” so that the permitted activity takes place in way that will not harm the species. For lobstermen, this in effect creates a more stringent whale plan.
Recent court cases have unveiled another layer to this already complicated legal framework. Currently three court cases are pending, and the rulings to date have introduced another hurdle to the continued operation of the lobster fishery — the issuance of an Incidental Take Statement (ITS) under Section 7 of the ESA for the federal waters lobster fishery, and obtaining an Incidental Take Permit (ITP) under Section 10 of the ESA for the state waters lobster fishery.
The first case was filed in early 2017 by four environmental groups against NMFS and is moving through the Washington, D.C. district court. In April 2020, the judge ruled that NMFS violated the ESA when it issued the 2014 biological opinion on the lobster fishery without including an ITS for right whales. In the 2014 biological opinion NMFS issued a finding of no jeopardy because the vertical line rule, which required lobstermen to trawl up based on distance from shore, was scheduled for implementation.
The judge was clear that if a permitted activity such as lobstering has the potential to harm a listed species such as right whales, that NMFS must issue an Incidental Take Statement (ITS) to address how the lobster fishery would operate in a manner that averts this potential harm to right whales. In its court filings, NMFS revealed that it purposefully did not issue an ITS for right whales in the 2014 biological opinion because the lobster fishery would not have been able to proceed. The judge wrote disapprovingly of NMFS’ action, stating that “[NMFS] cannot rewrite the statute just because they do not agree with its consequences.” This case is now in the remedy phase, which will determine how to bring NMFS and, in turn, the lobster fishery into compliance with the ESA.
The other two court cases were filed in Massachusetts and Maine district courts in 2018 and 2019, respectively, by self-proclaimed whale activist Richard Max Strahan. The Massachusetts case was filed against the Massachusetts Division of Fisheries, NMFS, the Atlantic States Marine Fisheries Commission, and the Massachusetts Lobstermen’s Association. The Maine case was filed against Maine Department of Marine Resources and NMFS. Both cases were filed to challenge the permitting of vertical lines in the state waters lobster and gillnet fisheries of each state. While the Maine case is still pending, in April 2020 the Massachusetts federal court ruled in Strahan’s favor, stating that Massachusetts officials must obtain an ITP under Section 10 of the ESA before permitting vertical lines in its state waters fishery. The state was given 90 days to do so.
In the two court cases in which the judge has ruled, it has become clear that the lobster fishery will no longer be allowed to operate in the absence of an Incidental Take Statement for right whales for the federal waters portion of the fishery and, at least in Massachusetts, an Incidental Take Permit for right whales in the state waters portion of the fishery. Although ITS and ITP are not the same thing and are under separate sections of the ESA, each requires that the fishery meet a very similar standard, essentially that the fishery operates in a way that will not incidentally harm right whales.
Here is how the two laws come together. If NMFS authorizes an incidental take under the ESA, it must also authorize an incidental take under the MMPA, so the standards of both laws must be satisfied in order for the lobster fishery to continue. Under the ESA, if NMFS determines that the lobster fishery has the potential to harm right whales, the biological opinion must include “reasonable and prudent alternatives” to ensure that lobstering operates in manner that will not harm right whales, and the agency must issue an ITS for right whales. In authorizing incidental take under the ESA, NMFS must also authorize the incidental taking of right whales by the lobster fishery under the MMPA, for which three criteria must be met. First, there must be an ESA recovery plan in place or under development, which has been done; second, the fishery must have a Take Reduction Plan and monitoring plan in place, which has also been done; and third, NMFS must make a “negligible impact determination” or “NID” showing that incidental mortality and serious injury from the lobster fishery will have a negligible impact on right whales.
The MMPA does not provide a definition of “negligible impact,” so NMFS has developed criteria on how to make this determination. The most recent guidance was issued in 1999 and required NMFS to look at serious injury and mortality from all commercial fisheries. Fortunately, NMFS has published updated guidance on NIDs effective June 17, 2020. The new guidance applies two thresholds to determine whether permitting the fishery will have a negligible impact on right whales. The first considers maximum total amount of human-caused mortality or serious injury from all sources. If that figure exceeds PBR, and for right whales it does, the second threshold comes into play. The second threshold allows the agency to consider the amount of mortality or serious injury from a single fishery. This new guidance will allow NMFS to consider the impact of the lobster fishery as a stand-alone fishery, rather than a part of all U.S. commercial fisheries. In its analysis, however, NMFS must also consider the potential for recovery of the right whale stock and the impact of the individual fishery on right whales within that broader context.
The California Dungeness Crab fishery has been grappling with the reality of obtaining an ITP for its state waters fishery more than a year. The California Department of Fish and Wildlife was sued by the Center for Biological Diversity in October of 2017. The case resulted in a settlement to reduce the interaction between the crab fishery and endangered whales by shortening the crabbing season by several months to end in April, or earlier if whales are detected. The department now collaborates with fishermen on at-sea assessments of whale migration and fishing activity to keep track of where the whales are during the winter and early spring. The state of California began its application with NMFS for an ITP more than a year ago, and these interim measures have allowed the crab fishery to operate while the ITP application process is underway.
The North Atlantic right whale population continues to decline, in large part due to mortalities in Canada in recent years. As the overall number of right whales goes, down, the federal standard to continue to permit the lobster fishery is becoming more difficult to meet. As the federal and state court cases proceed to remedy the violations of the law identified by these courts, the impact on the operation of the lobster fishery is unknown. There are a range of outcomes that are possible given the strict standards of the ESA and MMPA. The worst-case scenario is the closure of the lobster fishery until a new biological opinion and ITS for right whales are issued for the federal waters fishery and ITP is obtained for the state waters fishery. Or interim measures could be put in place that could range from status quo to a large scale restructuring of fishing practices to a ropeless fishery.
The environmental community has gained traction in making its case for much more stringent regulation of the lobster fishery, built upon closures that could only be accessed by fishermen using ropeless techniques. The Maine Lobstermen’s Association (MLA) has been leading the charge to set the record straight on the role of the Maine lobster fishery in the right whale decline. The MLA has engaged a talented legal team to advance the lobster industry’s position in the court cases and with NMFS to make sure decision makers have a full understanding of the fishery and its operations, and how this impacts right whales.
How NMFS ultimately interprets the potential for the Maine lobster industry to harm right whales could change the course of this fishery forever.