The lobster industry’s reaction over how to comply with the National Marine Fisheries Service’s (NMFS) whale conservation mandate has escalated from anxiety to bewilderment. NMFS is telling Maine lobstermen that they haven’t done enough to reverse the decline of right whales. The agency reports that its risk reduction mandate of 60% — addressed through conservation measures implemented in the May 2022 final whale rule — was too low. NMFS has also downgraded the credit the lobster industry received in the final whale rule.
NMFS established a 10-year whale plan in May 2021 that requires the lobster industry to reduce its risk to right whales by 98% by 2030. The plan established a phased-in approach achieving a 60% risk reduction in 2022, increasing to 84% by 2025, and ultimately 98% by 2030. This plan prompted the Maine Lobstermen’s Association (MLA) to sue NMFS in September 2021. The lawsuit claims that NMFS overestimated the risk the lobster industry poses to right whales because the agency is basing its decisions on worst-case assumptions and models that exaggerate risk rather than an objective assessment of the best available data.
“I have completely lost faith in NMFS,” said Patrice McCarron, executive director of the Maine Lobstermen’s Association. McCarron proudly reports the success of Maine’s right whale conservation measures that have eliminated known right whale entanglements in Maine lobster gear for more than 18 years. “As if things weren’t challenging enough, the agency has not only changed the goal post from 60% to 90%, but they’ve also made new assumptions with the exact same fishing data to downgrade the conservation credit for the measures we just put in place by 10%. NMFS seems to be going out of its way to find new ways to base its decisions on the worst possible scenarios.”
This perfect storm began in earnest in May of 2021 when NMFS published the Biological Opinion (BiOp) requiring lobstermen to reduce risk by 98% by the year 2030. The lobster industry immediately responded with concerns that the plan went too far and threatened to decimate the fishery. As it turns out, that was just the first of a series of growing challenges facing the lobster industry.
In November of 2021, NMFS again downgraded the right whale population estimate to 336 whales, from 366, and recalculated potential biological removal (PBR) to 0.7. Under the Marine Mammal Protection Act, this means that right whale deaths from all human causes cannot exceed 3.5 whales every 5 years.
NMFS also changed its accounting of dead right whales. Under its new method, for every observed right whale death, NMFS assumes that at least 3 additional right whales have died. NMFS refers to this as “cryptic mortality.” NMFS also claims that no right whales die from natural causes and attributes 70% of unknown right whale deaths (those observed dead but no cause of death determined) and cryptic deaths (those assumed dead but never seen) to commercial fishing and 30% to vessel strikes. The agency bases its formula on observed incidents where cause of death is determined. The result of these changes, according to NMFS, is that the lobster industry must reduce risk by 90% to get below PBR, not the 60% NMFS originally estimated.
To further complicate matters, in July 2022, Judge Boasberg ruled in the court case filed by three environmental groups against the federal government that the 2021 Final Whale Rule and 2021 Biological Opinion (BiOp) are both invalid on certain grounds. He did not grant numerous other claims asserted by the plaintiffs.
As to the Rule, the Court held that NMFS failed to comply with the Marine Mammal Protection Act’s instruction that a Take Reduction Plan “include measures the Secretary expects will reduce, within 6 months of the plan’s implementation” whale mortality to a level below PBR. As to the BiOp, the Court held that the Incidental Take Statement issued by NMFS is, again, invalid because it does not authorize incidental take of right whales. The Court has not yet issued an order detailing how NMFS must fix the flaws identified by the Court.
In yet another turn of events, in August of 2022, NMFS unveiled its updated risk reduction model, known as the Decision Support Tool. The new version includes updated whale distribution estimates and a new method of incorporating lobster fishing effort data into the model which resulted in a 20% reduction in baseline fishing effort. With these changes in place, NMFS reassessed the risk reductions achieved in the 2021 final whale rule and determined that it attained only a 50% risk reduction (down from 60%). This is largely driven by a decrease in the estimates of vertical lines fished, where they are fished and reduced co-occurrence with whales.
Having fewer vertical lines than originally estimated reduced the overall impact of the conservation measures.
“The MLA’s lawsuit against NMFS is our only hope righting these wrongs to give Maine lobstermen and right whales a chance to survive,” said McCarron. “We need the Court to tell NMFS to stop assuming worst case scenarios at every decision point that only serve to deepen the harm to lobstermen.”
The Court expects to issue a decision in the MLA’s lawsuit by the end of September.
[Editor’s Note: On September 8, 2022, Judge Boasberg issued a decision in Maine Lobstermen’s Association v. National Marine Fisheries Service – ruling against MLA. MLA released this statement: “The federal district court and the National Marine Fisheries Service (NMFS) have failed Maine’s lobster industry. It has become crystal clear that neither grasp the devastating impacts their decisions will have on the Maine lobster industry, our coastal communities, and the State of Maine. The court’s decision provides a blank check for NMFS to continue to use admitted “worst case scenarios” and disregard actual data in its regulation of a fishery that has zero documented right whale entanglements over the last 18 years. This disappointing decision puts the future of Maine’s lobstering heritage at great risk, and along with it, the livelihoods of thousands of hard-working men and women. But this is not the end. We won’t go down without a fight.”