“The MLA will not let over-reaching regulations based on inaccurate data erase the Maine lobster fishery and our fishing heritage,” said Patrice McCarron, executive director of the Maine Lobstermen’s Association (MLA), in response to two major federal rulemakings proposed this winter intended to protect endangered North Atlantic right whales. Last year, a federal court ruled that the lobster fishery cannot operate without revised rules in place and gave the government until May 31, 2021 to update and correct legal deficiencies in existing rules.
“None of us want to harm a right whale,” said Kristan Porter, MLA president and Cutler lobsterman. “It would be an extremely sad day for any lobsterman to think that a right whale was hurt in our gear. We’ve worked hard over the last 20 years to make our gear safer so that doesn’t happen.”
The MLA submitted extensive comments outlining legal and scientific flaws in the draft Biological Opinion on behalf of 12 New England fishing groups and proposing recommendations to correct and improve the science and conservation measures in the proposed whale rule. One of the central points raised by the MLA is that the most draconian measures proposed are likely to be ineffective at saving whales and unnecessary if NMFS adopts corrections proposed in the fishing industry’s comments.
“How can our government hold Maine lobstermen accountable for right whale deaths that we know are happening somewhere else? It’s just not right and it will not save the whales,” said Porter. Federal data show that 12 right whales died in Canada in 2017 and another ten in 2019. Three right whale babies have been killed by boat strikes in Florida over the last two years.
The Biological Opinion lays out a framework for a massive risk reduction over the next 10 years implemented through four phases. By 2030 the framework aims to reduce entanglement risk to right whales in all U.S. federal fixed gear fisheries, including lobster, by 98%.
Phase I of the Biological Opinion is implementation of the new Whale Rule to reduce entanglement risk to right whales from the northeast lobster fishery by 60%. This rulemaking has been in the works since 2017, when the first right whale population decline in more than two decades was first documented.
“For MLA, step one is to make sure both rules [whale rule and Biological Opinion] are implemented on time so that we have a fishery, but with enough flexibility so that lobstermen can fish safely and stay in business,” McCarron explained. “Step two is to fix the substandard science and modelling that misdirect regulatory efforts away from activities that are actually killing right whales.”
Maine lobstermen expressed their frustration over this process during the public comment period for the proposed Whale Rule, including:
Questioning why the lobster fishery has been singled out to expand its right whale protections when the last right whale death or injury linked to U.S. lobster gear occurred in 2002.
Noting that over the last four years more than one-third of right whale entanglement deaths and injuries occurred Canadian fishing gear.
Pointing out that preliminary reports on the recent death of right whale 3920, known as Cottontail, recovered off South Carolina in February, indicate that it was entangled in rope far larger than that fished in the Maine lobster fishery. Another entangled right whale, 3560, known as Snow Cone, sighted in Cape Cod Bay in January was also reportedly entangled in large diameter rope not fished by Maine lobstermen.
“We are looking down the barrel of a loaded gun aimed at our lobster fishery. The MLA has expanded its whale team to make sure that we leave no stone unturned,” noted McCarron. “We urge anyone who cares about the Maine lobster fishery to support the Legal Defense Fund. Quite literally, the future of the lobster industry is at stake.”
Excerpts from MLA comments appear below. The full comment letter and appendices are available at www.mainelobstermen.org.
MLA Comments on Draft Biological Opinion
The MLA submitted comments on behalf of the MLA and 11 other New England fishing groups and businesses representing the Massachusetts Lobstermen’s Association, Atlantic Offshore Lobstermen’s Association, New Hampshire Commercial Fishermens’ Association, Maine Coast Fishermen’s Association, Maine Lobstering Union, Downeast Lobstermen’s Association, Southern Maine Lobstermen’s Association, Maine Lobster Dealers Association, Maine Center for Coastal Fisheries, Maine Aquaculture Association and the O’Hara Corporation (collectively, the “Lobster Fishing Associations” or “Associations”).
“The Draft BiOp is an expansive document with far-reaching implications for New England’s iconic fisheries and cultural heritage. The Associations are alarmed that NMFS has developed a BiOp that assigns highest priority for NARW population recovery to the Lobster Fishery despite evidence that the most urgent risks are vessel strikes and entanglements in Canadian fisheries, which do not implement mitigation measures nearly as protective as those undertaken by the Lobster Fishery. The relative risks presented by the Lobster Fishery—which have already been substantially mitigated over the last decade—do not justify unsupported agency mandates that could eliminate an economic and fishing heritage that has sustained our coastal communities for centuries and is an integral part of New England’s identity…”
“We have carefully reviewed the Draft BiOp and provide detailed comments… which are summarized as follows:
- The Lobster Fishery has substantially reduced the risk it presents to NARWs over the past decade through implementation of risk reduction measures. The best available data shows that those measures have been effective, and the Final BiOp’s environmental baseline should fully reflect the benefits of such measures. The Associations encourage NMFS to focus on implementing effective measures in areas where there is demonstrated risk. In particular, ropeless gear is not economically viable at this time and there are numerous technical and operational challenges that must be addressed before it can be substituted for gear using vertical lines, as explained in greater detail below.
- NMFS should not be considering a management strategy that holds U.S. fishermen accountable for NARW M/SI in Canada. The U.S. must engage directly with Canada in an open and transparent manner. The Associations implore NMFS to engage more directly and aggressively with Canada to ensure that effective and measurable risk reductions are implemented bilaterally.
- The Draft BiOp presents an inaccurate assessment of the effects of the Lobster Fishery by relying upon unsupported assumptions that artificially inflate the risk from the Lobster Fishery. The result is that the Draft BiOp does not present an effects scenario that is “reasonably certain to occur” or supported by the best scientific and commercial data available…
NMFS arbitrarily assigned a level of risk to the Lobster Fishery that is unsupported by the evidence. NMFS must correct this flaw by adopting a uniform probabilistic approach, based on observed data, to apportion all unknown human causes…. This methodology should apply to apportionment of (1) unknown human causes to vessel strikes versus entanglements, (2) unknown entanglements between U.S. and Canada, and (3) unknown entanglements among U.S. fisheries.
NMFS based the “North Atlantic Right Whale Conservation Framework for Federal Fisheries in the Greater Atlantic Region” (“Conservation Framework”) on an unreliable model that arbitrarily ignored sublethal impacts. In doing so, it failed to capture the full benefits from mitigation requirements under Phase 1.
NMFS arbitrarily selected data from the 2010-2019 time period. It assumed that unfavorable trends in oceanographic conditions would continue but did not take a similar approach with favorable trends in observed data on the sources of entanglements. These latter trends demonstrate disproportionately more entanglements due to Canadian fisheries and, in the U.S., more entanglements from non-trap/pot gear. Nonetheless, NMFS allocated more mortality and serious injury (“M/SI”) incidents to the Lobster Fishery than is supported by the best available information.
The estimate for cryptic mortality is not reliable… these models are not suitable yet for long-term planning… [and] assume no natural mortality despite well-established research to the contrary.
NMFS failed to give appropriate weight to mitigation measures that reduce the severity of entanglement (e.g., weak links). These measures may substantially reduce or eliminate risks from trap/pot fisheries, based on published scientific literature.
The Decision Support Tool (“DST”) assigns equal weight to whale density, gear density, and gear type even though reviewers believe that whale behavior and gear type/configuration are the most relevant factors in determining entanglement risk. We suggest both approaches be evaluated.
- Phases 3 and 4 of the Conservation Framework are likely unnecessary once NMFS performs a more robust and accurate assessment of the effects of the action. We recommend that NMFS undertake a comprehensive assessment of Phases 1 and 2 that includes the participation of the states and the fisheries to ensure that the process is fully informed by the best scientific and commercial data available. The assessment should be reviewed by the Center for Independent Experts (“CIE”). This will inform whether Phases 3 and 4 are necessary and, if so, how they should be modified.
- The Conservation Framework’s benchmark of 0.11 M/SI is arbitrary and unsupported by the best available science or the law. NMFS provides no explanation supporting this metric or an explanation of how it was calculated. In any event, a “jeopardy” determination under Section 7(a)(2) of the ESA does not turn on a single metric, much less one that is far more stringent than would be required to achieve the more protective goals of the Marine Mammal Protection Act (“MMPA”). NMFS’s requirement that the M/SI rate “needs to be reduced” to 0.11 to achieve a “no jeopardy” determination has no precedent in the law or practice, and arbitrarily demands a result that exceeds the requirements of both the ESA and the MMPA.
- It is unclear how NMFS intends the Conservation Framework to be implemented through, or in conjunction with, the two primary sources of authority that govern the ongoing federal regulation of the Lobster Fishery—i.e., the Atlantic Coastal Fisheries Cooperative Management Act (“ACFCMA”) and the MMPA. These statutory processes should be integrated into the Conservation Framework.
- We offer a number of specific recommendations for refinement and improvement of the Draft BiOp’s reasonable and prudent measures and associated terms and conditions.”
MLA Comments on NMFS’s proposed amendments to the Atlantic Large Whale Take Reduction Plan
“The MLA is committed to supporting both the continued viability of the Maine lobster fishery and the improvement of the health of the western North Atlantic stock of the North Atlantic right whale (“NARW”) through management measures that accurately address documented risks to the NARW based on the best available science. Maine lobstermen are world leaders in conservation and stewardship. We take pride in our longstanding sustainable fishing practices, which include the implementation of successful measures for over two decades to protect the NARW. Since NMFS formed the Atlantic Large Whale Take Reduction Team (“TRT”) in 1997, the MLA has been fully engaged in working to reduce the potential risks to the NARW from entanglement in U.S. fishing gear.
We provide the comments below to inform and improve NMFS’s development of a final rule and preparation of a final EIS. As an important initial matter, we wish to emphasize that MLA opposes the proposed LMA1 restricted area, which is the product of a legally, scientifically, and factually deficient process. The TRT did not recommend (or even discuss) the LMA1 restricted area. No LMA1 closure of any kind was presented for public review and input in the scoping process for the DEIS. Consequently, the proposed LMA1 restricted area has not been sufficiently vetted and, indeed, NMFS has substantially underestimated the economic impact of this proposal. A mere 60 days for public input is not adequate to assess and inform a proposal that (1) will have adverse economic, operational, safety, and social impacts on the fishery and (2) in the normal course, would have been comprehensively investigated and informed through the statutorily mandated Marine Mammal Protection Act (“MMPA”) take reduction planning and National Environmental Policy Act (“NEPA”) scoping processes.”
In the short period of time that has been given, MLA has worked diligently to assess the proposed LMA1 restricted area as best as possible under the circumstances. Notwithstanding MLA’s opposition, if NMFS decides to implement the LMA1 restricted area, then MLA strongly recommends that NMFS: (1) shift the closure period to September through December; (2) reconfigure the restricted area as specifically described in the comments below; and (3) select Alternative 1-B (the “trigger” option). These recommendations would significantly reduce the economic, operational, safety, and social impacts of the closure without compromising conservation benefits to NARW.
Additionally, the “trigger” implementation option would also allow NMFS to both implement the restricted area if and when it becomes necessary, and properly investigate temporal and geographic options for the restricted area based on full input from the fishery and other stakeholders. Our detailed comments and recommendations regarding the LMA1 restricted area are set forth in Section II.D below.
The other key points and recommendations addressed in Section II below are summarized briefly as follows:
The Proposed Rule unjustifiably targets the Northeast lobster fishery. There have been no observed serious injury or mortality entanglements associated with the fishery since a comprehensive suite of protective measures was implemented in 2009.
The 60% risk reduction target is flawed because it arbitrarily assigns only 50% of unknown entanglements to Canadian fisheries when the best available data show that a much higher percentage of entanglements occur within Canadian fisheries. Within U.S. fisheries, NMFS arbitrarily assigns all risk for unknown entanglements to trap/pot gear when the best available science suggests that NARWs are twice as likely to be entangled in other types of gear. Accordingly, we recommend that NMFS take a consistent probabilistic approach for all apportionments that are made for purposes of determining risk reduction, specifically to base apportionment on observed data.
The Proposed Rule fails to account for the full benefits of weakening vertical lines to reduce mortality and serious injury from entanglements. The full benefits should be taken into account in the development of a final rule.
The MLA strongly recommends that NMFS include conservation equivalencies in its final rule to allow lobstermen as much flexibility as possible in implementing risk reduction measures, particularly when some of those measures will not be practicable for many lobstermen.
The MLA supports the Proposed Rule’s gear-marking provisions.
The Proposed Rule underestimates economic impacts. When actual impacts are considered, the Proposed Rule is economically significant under E.O. 12866 and must be evaluated as such.
The MLA recommends that NMFS adopt a phased-in implementation schedule for a final rule because lobstermen cannot reconfigure and mark gear in the middle of the fishing season. The final EIS must present a full analysis of all of the technological, operational, economic, safety, and enforcement concerns that must be resolved for a ropeless gear fishery to be viable.
Alternative 3 exceeds legal requirements, is impracticable, and fails to maximize net benefits. NMFS should therefore not adopt Alternative 3 or any portions of Alternative 3. The TRT process leading up to the TRP recommendations that form, in part, a basis for the Proposed Rule was rushed and flawed. This undermines both the TRP recommendations and the Proposed Rule…”
The MLA also identifies many safety, operational and economic concerns that some lobstering operations will face as a result of the proposed trawling up and weak point requirements.
“The MLA appreciates NMFS’s consideration of the comments and recommendations provided in this letter. The MLA remains committed to working with NMFS to ensure that this rulemaking process achieves a result that maximizes conservation benefits while also—and very importantly—minimizing adverse economic, operational, and social impacts to the Maine Lobster Fishery. The recommendations provided above will help to accomplish that balance and ensure that any final rule is consistent with the best available scientific and commercial data.”