The Maine Lobstermen’s Association is suing National Marine Fishery Service over the biological opinion that informed the development of new regulations, which include closing a large area off the coast of Maine.

The association has asked a U.S. District Court in the District of Columbia to delay implementation of new regulations, according to association Executive Director Patrice McCarron. The lawsuit asks that the National Marine Fisheries Service’s biological opinion and whale rules be sent back to the federal agency and that the agency consider the best available science in a revised document.

The closure is located about 12 nautical miles offshore outside the Maine exempt area and runs adjacent to Midcoast towns from Hancock County to Franklin County.

The area will be closed to vertical lines, commonly used in the lobstering industry, from October to January starting this year, but gear that requires no vertical rope can be used in the area. However, that technology has not been well tested and is not currently commercially feasible.

Other regulations include 1,700-pound breakaway rope, gear marking and an increase in the number of traps per trawl line in certain fishing zones. The overall changes are expected to cost the industry as a whole $19.2 million for the first year, according to the National Oceanic and Atmospheric Administration.

The closure is likely to affect 62 Maine vessels that fish in that proposed closure area, according to NOAA. But many in the fishing community are concerned that it could cause trap overcrowding in areas outside the proposed closure, which impacts more than the fishermen who lay their traps inside it.

Maine Department of Marine Resources Commissioner Patrick Keliher released a statement opposing many of the new regulations and criticized the federal government for implementing regulations that were far different from those previously discussed with the Maine fishing community.

“Also, after DMR took the initiative to communicate extensively with NOAA, Maine implemented state-specific gear marking regulations as a proactive measure to address data gaps,” he said in the statement. “NOAA ultimately implemented a gear marking scheme that is significantly different than what was in the proposed rule.

“This change will not only compound the economic burden on fishermen who previously modified their gear; it also undermines the trust necessary for fishermen to engage in the rulemaking process, and means Maine will think twice about being proactive when it comes to federal rules.”

The commissioner was also concerned that the model federal officials used to determine the closure area lacks acoustic or visual data of whales in those areas. NOAA staff confirmed that the models did not use much sighting or acoustic data in its model.

Woods Hole Oceanographic Institute deployed acoustic gliders during two separate occasions during two winters between December and April and found that there were some whales detected in the proposed closure area.

This data did not inform the model used by the federal government to determine the frequency of right whales in Maine waters; rather, the data is used to confirm that the closure area makes sense, NOAA Communications and Internal Affairs Team Supervisor Allison Ferreira said in an email to The Journal.

Conflicting opinions

Proponents of the right whale and proponents of the Maine lobster fishery have conflicting ideas about the extent of the new rules. Lobstering stakeholders argue the regulations go too far, but whale proponents say they do not go far enough.

New England Aquarium Senior Scientist Amy Knowlton said whale proponents were hoping to see a risk reduction of 80%, instead of the 69% established by the federal government, because the species is in such decline from rope entanglements and ship strikes.

She is also thinks that the federal government should have laid out a path to fishing practices without ropes rather than just making it an option for the closure area. “We feel that there needs to be a new way of fishing introduced into the whole industry broadly to really address this threat and that really was not touched upon,” she said.

She feels that the number of fishermen in Maine has dramatically increased over the years and an effort could be made to reduce the number of licenses the state issues over the next few years, which would also result in a reduction in vertical lines that threaten the whales.

Whale proponents also believe that the 1,700-pound breakaway rope should be used in the entire end line instead of only in the top half or third of the end line, she said. If whales get caught in the lower part of the end line, then whales could suffer death or serious injury.

She also took issue with the lack of opportunity the federal government will have in the new regulations to extend or create new closures as the whales migrate and move into new waters into the future, she said.

Whale proponents would like to see changes in fishing practices everywhere to make it safer for whales, ideally shifting to traps that do not require vertical lines in the water column.

“We know that they migrate or pass through coastal Maine waters so nobody’s really off the hook here, so to speak,” she said. “It’s a pervasive problem that occurs everywhere from Florida to the Gulf of Saint Lawrence. And we are advocating that all fishing industries use fishing gear that are willing to make changes and start embracing new changes as a way to continue fishing but not at the expense of killing large whales.”

McCarron argues that the federal government ignored data and other research models when developing the species’ biological opinion, which is one of the document that officials used to develop the new regulations.

The federal government calls for a 98% risk reduction to right whales from the New England fishing community by 2030, she said. The Lobstermen’s Association filed the lawsuit because it claims that National Marine Fisheries Service ignored the lack of data suggesting there are large numbers of whales in Maine waters.

She said the lobster industry has a great track record pertaining to the whales; it has never been associated with a whale death or serious injury. It has been 17 years since a right whale has been entangled by a fishing line from Maine.

Many researchers think the right whale’s food has shifted from the Bay of Fundy up to Saint Lawrence Bay, which is changing whale migration patterns and a possible cause of an increase in whale deaths in recent years. McCarron does not think the federal government took any of that research into account.

“A 98% risk reduction doesn’t make sense, given our entanglement track record, given how the right whales are shifting and how they’re not even expected to be interacting with our fishery in future years,” she said.

She said fishermen are worried for the future of the industry and they do not know what a 98% risk reduction will do to the industry. “The anxiety level is very, very high and we really are concerned that the agency hasn’t based this on science; they’re going to hurt us and they’re not going to solve the right whale problem in the process,” she said.

filed under: