Conflicts between rules to protect right whales and the Maine lobster fishery are further complicated by a recent ruling handed down by a Washington, D.C., judge. U.S. District Judge James Boasberg's order found that the National Marine and Fishery Services violated the Endangered Species Act by licensing the lobster fishery.

In 2018 conservation organizations Center for Biological Diversity, Defenders of Wildlife, Humane Society of The United States and Conservation Law Fund brought suit against NMFS for not submitting an incidental take report on the United States lobster fishery for right whales, an endangered species.

An incidental take report outlines measures to reduce endangered animal casualties resulting from industry practices; for example, long parallel lines along the water column in the Gulf of Maine that may entangle whales.

Boasberg ruled April 9 in favor of the conservation organizations’ petition for summary judgment because NMFS affirmed the groups’ claim that an incidental take report was not filed as required by the Endangered Species Act.

According to calculations used under the Endangered Species Act, the fishery is not allowed to kill more than one whale per year by line entanglement, but NMFS calculated the U.S. lobstering industry would take up to three individuals annually from the species, thus preventing permitting the industry if NMFS had followed the correct procedure, according to information in the court docket.

In the second phase of the case, the judge will decide what action is necessary to rectify the situation. The Maine Lobstermen’s Association, an intervenor, and other industry stakeholders around the Gulf of Maine, will submit information for the judge to consider in his ruling.

Different impacts within the fishery

Right whale migrations in the Gulf of Maine have changed since about 2010, according to Michael Moore, a biologist affiliated with the New England Aquarium. He said they used to be seen more in the Bay of Fundy, north of Maine.

He suspects their food source, plankton, has shifted, which is why researchers are starting to see large groups of them south of Cape Cod and in Canada’s Saint Lawrence Bay.

This whale migration shift has resulted in a decline of the species for the first time since researchers began working to protect them over 30 years ago, he said. In 2010 there were over 200 whales and the species was slowly increasing its numbers, according to Moore.

But since the whales started migrating into common Massachusetts fishing areas and the Saint Lawrence Bay, there has been an increase in deaths from ship strikes and entanglements, he said.

The majority of whale deaths result from ship strikes, according to data from the National Oceanic and Atmospheric Administration. In 2017 there were 17 unusual whale deaths recorded; 12 were found in Canadian waters, according to NOAA, and four of those deaths were from ship strikes, three were from entanglements and five were from undetermined causes.

It can be hard to know exactly where the deaths occur, because sometimes dead whales are not spotted for a while and can drift to different areas during that time, Moore said.

But he said deaths are not the only thing putting the species at risk. They need an environment that is stress-free enough to breed. Trying to navigate waters with blasting, fast-moving vessels and entanglements presents environmental stressors that are not always fatal, but can still affect breeding, he said. “Whales too stressed to reproduce are essentially dead whales swimming.”

Few right whales in Maine

Patrice McCarron, executive director of the Maine Lobstermen’s Association, said fishermen have sighted few whales off the coast of Maine and cites the absence of researchers looking for whales in Maine waters as proof that they do not frequent the coast of Maine in large numbers.

She said the Maine fishery should not be lumped in with the Massachusetts fishery, because there are few whales found in Maine waters. When there is a sighting off the coast of Maine, she said, it is usually one or two individuals, but in the waters off Massachusetts they are seen in large groups.

When whales frequented the Bay of Fundy before 2010, there were 27,000 miles' worth of sinking fishing line in the water, according to McCarron. Since 2009, sinking lines have been removed from lobster fishing, she said. “We’ve actually decreased our impact on the right whales by decreasing our lines,” she noted.

In 2014, the state removed 30% of fishing lines by consolidating the number of lines per trap, she said. Since the whales started frequenting the Bay of Fundy less, she thinks there are even fewer whales in Maine waters than before.

Between 2010 and 2018 there was only one confirmed whale entanglement in the U.S. lobster fishery, according to NOAA. McCarron said the rope commonly found tangled around whales is larger in diameter than what is usually used by Maine lobster fishermen.

McCaron wants to make sure the judge understands the absence of whale research conducted in Maine. She said the Maine fishery does not have a large negative impact on right whales. “We recognized early on that this case would have the potential to impact our fishery,” she said. “… If you’re going to be regulating, we need to know if they’re here.”

Next steps

Activist Richard Strahan filed a motion in federal court in Bangor to stop fishing in Maine May 15, citing violations of the Endangered Species Act, Maine Public reported. The Maine Department of Marine Resources has no intention of curtailing lobster permits, said spokesperson Jeff Nichols.

He said DMR is filing a response to the case in Bangor, but he thinks it will take several months before it is considered.

The four conservation groups that brought the case against NMFS proposed to the judge that he create a conservation area that prohibits the use of vertical ropes in an area south of Cape Cod where the whales gather in large numbers, according to Conservation Law Fund Senior Attorney Emily Green.

“Creating space like this off the New England Coast is the only way to ensure the whales' recovery,” she said.

She said the lawsuit is not an attempt to lump the Maine fishery with the Massachusetts fishery. The fact that they recognize the difference between the two is why the plaintiffs made their proposal, she said.

Moore said he is familiar with the struggles facing the lobster industry, but he will continue to advocate for the whales' rehabilitation as long as they have a chance for survival.

“I feel incredibly sympathetic for the lobster industry because they’ve been screwed heavily with policies that don’t work,” he said. “… But I’m not ready to give up on this species.”