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Judge orders new fisheries impact analysis on right whales, decides not to close fishery

By Kendra Caruso | Sep 09, 2020
Source: File photo

Washington, D.C. — United States District Court Judge James Boasberg in Washington, D.C., handed down his remedy Aug. 19 to the National Marine Fisheries Services, which he ruled last spring had violated the Endangered Species Act in licensing the fisheries in the northeastern U.S.

He gave the NMFS until May 31, 2021, to conduct a new biological opinion on the fishing industry's impacts on the endangered right whale species and measures to decrease whale deaths caused by the industry, vacating the previous biological opinion.

Earlier this year he found that the NMFS had failed to file an incidental take report in 2014 after discovering the vertical lines used in the fishing industry could be responsible for up to three whale deaths a year, which is more than the species can sustain, according to NMFS' own calculations.

Center for Biological Diversity, Conservation Law Foundation, Defenders of Wildlife and the Humane Society of the United States, the plaintiffs in the case, requested over 5,000 square miles south of Cape Cod, Massachusetts, where large numbers of whales congregate, be closed to vertical line fishing.

Intervenors in the case argued that closing off that area to fishing would place more nets outside its boundaries, creating a situation where lines are closer together, increasing entanglement risks for whales trying to reach the area considered for fishing closure.

The judge decided against the plaintiffs' request because there is no legal precedent for such an action, he said in his opinion. He decided it would be too detrimental to the New England fishing industry that is already struggling because of the coronavirus.

“For the many dozens of fishermen with pots currently in the SNERA (Southern New England Restricted Area Injunction), an indefinite closure starting now, at the height of the fishing season, would make matters worse,” he wrote.

The judge argued that the NMFS is the most qualified agency to investigate and develop remedies for fishing impacts on the endangered whale. He said it has been developing new regulations, with advice from several state fishing agencies, to protect the whale species for nearly two years.

He said it is important to let the NMFS develop localized solutions with help from state agencies because right whales frequent the waters from southern to northern New England at different rates in different places.

Six months is a short time to give the NMFS to develop new assessments and regulations during a national pandemic, because it usually takes agencies longer to complete such evaluations, he said.

Conservation Law Foundation stated it was satisfied with the judge’s decision to require the NMFS to implement new protections for whales in New England fisheries.

“The survival of the species cannot wait for endless debate on new protections,” the foundations’s senior attorney, Erica Fuller, said in a statement. “The judge made it clear that the federal government needs to go back to the drawing board and meaningfully address all of the impacts of the lobster fishery on right whales. Today’s ruling will put a stop to the government’s endless foot-dragging on implementing new long-term protections.”

Maine Lobstermen’s Association, an intervenor in the case, released a statement about its satisfaction with the decision not to close down an area in Massachusetts to fishing and giving time to develop new measures to protect the whale from harm.

“We are thrilled that the court will not shut down the lobster fishery or agree to an unprecedented request to designate a massive new closure area unsupported by science and unvetted by the stakeholder process,” MLA Executive Director Patrice McCarron said in a statement. “The MLA is so grateful for the tremendous outpouring of support that enabled our legal team to educate the court about the lobster industry’s longstanding and successful efforts to protect right whales and the economic devastation that would result from a shutdown of the fishery.”

Whale species numbers were rebounding until about 2010, when researchers believe their food source migrated from areas around the Bay of Fundy to areas in Massachusetts and the Saint Lawrence Bay in Canada. Both areas are heavily fished and have high vessel traffic.

There have been a number of right whale deaths because of ship strikes discovered in the Saint Lawrence Bay, but researchers argue that it is hard to know where the whales are being struck or entangled, because they can drift to different regions before being discovered.

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