The Governmental Process
One of the biggest issues facing Maine’s lobster industry is the plight of the North Atlantic right whale. The population has been in decline since 2010, exacerbated by 18 deaths in 2017. To aid right whale recovery, changes are required to the Atlantic Large Whale Take Reduction Plan (whale plan). The MLA has been working on this issue since 1997 when the Atlantic Large Whale Take Reduction Team (TRT) was formed. Over the past 20 years, Maine lobstermen have implemented many measures to protect whales.
In April 2019, National Marine Fisheries Service (NMFS) set a very aggressive risk reduction target requiring new whale protection measures to reduce serious injury and mortality to right whales by 60% to 80%. This risk reduction must be in addition to protections already afforded to right whales through the current whale plan. The Take Reduction Team (TRT) met in Rhode Island in late April to discuss a variety of alternatives to meet the risk reduction goal. NMFS developed a Decision Support Tool for the TRT to assess a variety of alternatives including vertical line reductions, trap reductions and closures. The tool analyzes the number of whales, fishing gear and type of gear in an area to determine the baseline risk and risk reduction based on proposed management changes. The Decision Support Tool was only developed weeks before the meeting, raising many concerns about its readiness and utility in providing sound management advice. Despite this concern, NMFS was clear that any management measures that fall short of the risk reduction goal would be adjusted by the agency during rulemaking. Letters raising concern about the tool are below.
To quote Patrice McCarron of the MLA:
Given all this the bureaucratic confusion, lobstermen naturally want to cut to the chase. “If there are no recent confirmed right whale entanglements in Maine lobster gear, why do we need to do anything?” they wonder. “Who is standing up for us and telling the government that enough is enough?” The Maine Lobstermen’s Association is. The MLA is present at all of the whale meetings and you can be sure, we are not sitting there silently. At whale management meetings, we have already said “No” to ropeless fishing and to a mandate for 1,700 pound weak rope for everyone. At industry meetings, we are listening to lobstermen’s feedback on what will work for Maine. And the MLA is an intervener in the court case so that the Maine lobster fishery will have a voice if any decisions are made through the court.Steaming Ahead, Landings, April 2019
In order to meet the risk reduction target, the Maine lobster industry committed to a 50% reduction in vertical lines in combination with the using toppers on buoy lines (weaker rope on top), expanded gear marking and reporting. Maine’s pledge to make these changes is contingent upon other states and lobster fishing areas providing equal risk reduction for right whales. All participants in the lobster fishery will share equally in reducing risk. How Maine will meet the vertical line reductions will be addressed by DMR based on feedback from the lobster industry. Maine’s TRT representatives were able to ensure that there were no closures to lobster fishing in Maine waters (two were proposed for Maine) and that ropeless fishing was removed as a management option. Taking rope out of the water provides a tangible benefit to whales to aid in the species’ recovery. However, many in the environmental community do not believe this goes far enough. A senior attorney with the Conservation Law Foundation commented that “Reducing and weakening the lines in the water is a start, but we need to go much further, much faster. Appropriate closures and ropeless fishing need to be part of the solution.”
Commissioner Keliher commented,“The outcome for Maine’s lobster industry could have been far worse,” Department of Marine Resources (DMR) Commissioner Patrick Keliher wrote in a subsequent letter to Maine’s commercial lobstermen. “In the end, Maine delegates were successful in pushing back on those proposals, and the final recommendations did not include approaches that were either unproven (ropeless) or shown not to be warranted (closures and weak rope all the way to the bottom or in areas with low risk).”
There are two federal laws which require Maine lobstermen to protect endangered large whales and aid in the species’ recovery.
Under the Marine Mammal Protection Act, North Atlantic right whales are designated as a strategic stock and the lobster fishery has been determined to have the potential to interact with these whales. Whale protection measures including weak links, sinking groundlines, trawling up and gear marking, have been implemented through the Atlantic Large Whale Take Reduction Plan under the MMPA, with input from the TRT.
Under Section 7 of the Endangered Species Act, NMFS is required to conduct a consultation to determine whether federally permitted activities, such as lobster fishing, jeopardize the right whale population. NMFS began work on the consultation in October 2018 which will result in the publication of a Biological Opinion based on the status of species, description of federally permitted activities, and an effects analysis. Several environmental groups filed suit against NMFS over the need for a new biological opinion on the lobster fishery in 2018. The court case, which is before a judge in the U.S. Court in the District of Columbia, is ongoing. The date for release of the Biological Opinion is anticipated later in 2019 and is expected to include an analysis of the lobster fishery with status quo whale rules as well as an alternate analysis taking into account the conservation achieved by new whale protection measures recommended by the TRT that are underway through the federal rulemaking process.
ASMFC met in later April and tabled action on potential changes to the lobster management plan to protect right whales until August. ASMFC established a lobster and Jonah crab fishery control date of April 29, 2019 for LCMA 1 to notify current state and federal permit holders and any potential new entrants to the fishery that eligibility to participate in the commercial fishery in the future may be affected by the person’s or vessel’s past participation and associated documentation of landings, effort, and/or gear configuration prior to the control date. The Commission will recommend NOAA Fisheries establish the same control date for federal waters of LCMA 1.
The MLA is working tirelessly to protect this amazing fishery. You can help support our work by becoming a member or by donating to the Legal Defense Fund. This fund is designated to pay the costs associated with battling any unfair and devastating rules.
In 2002, the MLA documented the gear used in the lobster fishery and how it differs along the coast in “Lobster Pot Gear Configurations in the Gulf of Maine”. this resource has been extremely helpful in educating management groups on how Maine lobstermen fish. Please contact us if you would like a copy.