In late May, the National Marine Fisheries Service (NMFS) released the final version of its much-anticipated Biological Opinion on fishery management plans for ten fisheries, including the lobster fishery, operating in federal waters.
The final Biological Opinion found that the lobster fishery (and nine other federal fisheries) did not jeopardize the continued existence of the North Atlantic right whale population provided that the fisheries comply with an aggressive ten-year Conservation Framework to reduce risk by 98%. In April 2020, a federal judge ruled the 2014 Biological Opinion invalid putting the lobster fishery in violation of the Endangered Species Act (ESA). The judge gave NMFS until May 31, 2021 to replace it and allow the lobster fishery to comply with the ESA so it can continue to operate.
The Conservation Framework is divided into four phases. The first phase, which begins when the Final Rule is published later this year, requires lobstermen to comply with changes to the Atlantic Large Whale Take Reduction Plan, known as the whale rules. Based on the Proposed Rule, those changes will likely require Maine lobstermen to adopt a combination of trawling up and incorporating weak points into their endlines. In addition, a large seasonal closure from October through January has been proposed in Lobster Management Area 1, off zones C, D, and E along the Area 3 line. Lobstermen could apply for an exempted fishing permit to operate in the closed area if they fish without endlines. NMFS has stated it expects the Final Rule to be published in September.
Reaction to the Biological Opinion from both the Maine Lobstermen’s Association (MLA) and the state of Maine was highly critical.
“While we are pleased that the lobster fishery can continue to operate under this new Biological Opinion, we are extremely concerned that NMFS has not addressed the major scientific deficiencies driving its overly aggressive risk reduction targets for U.S. fishermen,” Patrice McCarron, executive director of the MLA, said in a press statement. “We are also disappointed that neither NMFS nor the Biden Administration has released a concrete plan to address the disproportionate harm to right whales occurring in Canada, or vessel strikes occurring in U.S. waters. Failure to demonstrate progress in these other areas is having a detrimental impact on Maine lobstermen.”
“The Department of Marine Resources will conduct a thorough evaluation of the Bi-Op, but upon initial review we are pleased that ‘no jeopardy’ was found,” said Governor Janet Mills. “However, the long-term ramifications of this document as it relates to the recovery of right whales and its impact on Maine fisheries over the next ten years remain troubling. In particular, the Bi-Op highlights not only the importance of Canada taking significant steps to reduce right whale mortality, but also the need for NOAA to be able to quantify how risk reduction measures by Canada can reverse the declining trend in the whale population. Failure of either could ultimately lead to unnecessary restrictions in the U.S. — and that is not acceptable.”
The MLA pointed out that the Biological Opinion uses a “worst case scenario” overestimating projected declines in the right whale population over the next 50 years. “The consequences of an overly precautionary and unrealistic analysis are draconian restrictions that will destroy the lobster fishery. The technology necessary to achieve 98% risk reduction across the entire fishery is in its infancy and fraught with technical, economic, and fisheries enforcement challenges,” the MLA wrote to NMFS.
The lobster fishery remains concerned that the new Biological Opinion holds U.S. lobstermen accountable for right whale deaths that have occurred in Canada and does not contain a concrete plan to address U.S. vessel strikes or to engage more aggressively with Canada on its outsized role in the right whale population decline. The lobster industry is also frustrated that NMFS is placing this high burden on the lobster fishery and has not acknowledged that entanglement statistics show that no right whales have ever been known to have died or been seriously injured in Maine lobster gear.
While the industry awaits the Final Rule, the court case over the Biological Opinion in DC District Court is moving forward again. NMFS has asked the court to end the case, stating that it complied with the court’s order to complete the new Biological Opinion by May 31. The plaintiffs strongly disagree and have asked the court to hold NMFS and the operation of lobster fishery as unlawful, per the court’s April 2020 ruling. They asked the court to require NMFS to come into compliance within 60 days. The MLA and other intervenors have until early July to respond.