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Draft Whale Rules Expected by Fall

NOAA Photo.

Maine lobstering communities are waiting with great anxiety to learn the outcome of two court cases related to North Atlantic right whale protections. Each case has the potential to fundamentally change how lobster fishing is pursued in Maine and federal waters. Legal proceedings are known to move with agonizing slowness however, these two case – one in federal District Court in Washington, D.C., and the other in federal court in Bangor – are proceeding with some speed, as the following summaries highlight. In addition, a petition by Pew Charitable Trusts to the National Marine Fisheries Service (NMFS) to close large areas of the Gulf of Maine and waters south of Nantucket Island is still under consideration by the agency.

Federal Court Case in DC District Court By July 10, the federal court had received all of the filings from the plaintiffs, defendants and intervenors advising the court on the question of an interim remedy for NMFS’s violation of the Endangered Species Act, identified by the court in phase one of this case. Here is a summary of what has been filed. The plaintiffs (Center for Biological Diversity, Humane Society, Defenders of Wildlife and Conservation Law Foundation) continue to argue that right whales are in imminent danger if NMFS does not require additional management action by the U.S. lobster fishery. They downplay the role of Canada and vessel strikes in recent right whale deaths and injuries, arguing that the U.S. fishery is primarily responsible for the right whale decline. They engaged Woods Hole Oceanographic Institute veterinarian Michael Moore, who conducts necropsies of right whales, to provide expert testimony on the need to further regulate the lobster fishery. The plaintiffs have asked for two things: that the court vacate the 2014 Biological Opinion (which found that the lobster fishery did not jeopardize the right whale population) and require NMFS to issue a new Biological Opinion and final whale rules by the end of January 2021. During the interim time period, they seek a prohibition on the permitting of vertical lines in a large area around Nantucket in Massachusetts. This would result in a de facto closure of the area and set a precedent for lobstermen to deploy ropeless gear in order to keep fishing. The defendant (NMFS) argues that there have been no documented right whale serious injuries or deaths caused by U.S. lobster gear since the issuance of the 2014 Biological Opinion. The agency has revised the timeline for the release of the new Biological Opinion and final whale rules several times. In this latest filing, NMFS states that they need until the end of May 2021 to issue a final Biological Opinion and whale rules, with drafts expected to be issued this summer or early fall. NMFS opposes the plaintiff’s request to prohibit the permitting of vertical lines in the area around Nantucket on the basis that this would not allow proper public input or scientific review of this measure. Intervenors (the Maine Lobstermen’s Association and Massachusetts Lobstermen’s Association) filed a joint brief providing the court with data documenting a 90% reduction in right whale entanglement in U.S. lobster gear since 2010, largely as a result of the aggressive whale plan implemented by the U.S., and the distributional shift of right whales away from waters where the majority of the U.S. lobster fishery occurs. The brief provided extensive detail on whale conservation measures already in place, highlighting the overall strategy and effectiveness of the whale plan. In the areas where right whale aggregations continue to overlap with the U.S. lobster fishery (i.e. the greater Massachusetts Bay area), large scale permanent seasonal closures are in place. In areas where right whales are rare but may swim near U.S. lobster gear, significant gear modifications have been implemented to reduce the likelihood of harm to a right whale. Intervenors also provided data on the 23 right whale deaths that have occurred in Canada since 2017, ten of which occurred in 2019. Intervenors supported NMFS’s position not to vacate the existing Biological Opinion and to require NMFS to issue a new Biological Opinion and final rule by the end of May 2021. They opposed the prohibition on vertical lines in the Nantucket area in Massachusetts. The intervenors provided written declarations from six experts testifying to the small role of the U.S. lobster fishery in right whale entanglements; recent and significant changes in whale distribution; and the substantial challenges of fishing without rope. Intervenors Little Bay Lobster and the Maine Lobstering Union (MLU) filed separate briefs taking similar positions. Maine DMR filed a brief as Amicus Curiae emphasizing the department’s strong interest in ensuring the continued operation of the Maine lobster fishery due to its significant cultural and economic importance to the state, the historical lack of evidence of entanglement or take of right whales in gear from the Maine lobster fishery, and the right whale protective measures and risk reductions that Maine has already implemented and has proposed to augment. DMR urged the court to allow NMFS additional time to complete a new Biological Opinion and, in the meantime, keep the existing Biological Opinion in place and not require any new measures in Maine’s federal water lobster fishery. The judge has scheduled oral arguments to be held on August 3. The judge has flagged the issue of the timetable for NMFS to issue a new Biological Opinion with Incidental Take Statement for right whales and urged the parties to identify a deadline upon which they could agree. The court has not indicated a timeline to render its decision.

Maine Case in Bangor District Court In September 2019, Max Strahan filed a complaint against DMR and NMFS in U.S. District court in Bangor, Maine, for authorizing the use of vertical lines in Maine’s state and federal lobster and gillnet fisheries. In May, NMFS filed a motion to dismiss the case but the judge ruled to allow the case to proceed. In mid-May, Strahan filed a Motion for Preliminary Injunction asking the judge to prohibit the use of vertical buoy lines in Maine’s lobster and gillnet fisheries and to require the state to immediately apply to NMFS for an ESA Section 10 Incidental Take Permit to continue to license these fisheries. Strahan filed a similar case in Massachusetts; the judge there ruled that Massachusetts is required to get an Incidental Take Permit within 90 days to continue to permit buoy lines in its state waters fishery. The MLU and the MLA have both been granted intervenor status in the Maine case. The court denied Strahan’s motion for a preliminary injunction to prevent DMR or NMFS from continuing to authorize the use of vertical buoy ropes in both Maine fisheries while the case is decided. Strahan has filed an appeal of this decision with the United States Court of Appeals for the First Circuit. Briefing deadlines for the appellate case are not yet established. In the district court case, Strahan has submitted multiple procedural filings, including oppositions to the motions to intervene of the MLU and MLA, both of which were denied by the court. Currently, the parties await issuance by the judge of a procedural order establishing further deadlines.

Pew petition for emergency closures The Pew Charitable Trust sent a petition to NMFS in mid-June requesting emergency rules to protect whales by instituting four closures: a massive year-round vertical line closure below Nantucket in Massachusetts, a seasonal vertical line closure offshore of Mount Desert Island (August to October), a seasonal vertical line closure off Jeffreys (May to July), and a massive offshore seasonal closure in Area 3 along the Area1/Area 3 line (Oct to May). Maine has strongly opposed any proposals for closures during the past few years, and they were soundly rejected by the Take Reduction Team because they show little conservation benefit. The Maine Congressional delegation, Governor Mills and the MLA each sent letters to NMFS urging the agency to reject the Pew petition. Governor Mills raised concerns that this would delay the release of the long-awaited Biological Opinion and draft whale rules. DMR also did a preliminary analysis of the proposed closures and determined that they were likely to increase risk, as much as 12% in some areas, as fishermen shift gear to surrounding areas. The MLA raised concerns that the Pew petition did not address the documented risk to right whales from other sources, noting that right whale entanglement in lobster gear has declined by 90% since 2010 and that 23 right whales have died in Canada since 2017. The MLA also noted that the proposal would cause significant economic harm to lobstermen and likely increase, rather than decrease, risk to whales as lobstermen shift gear to the edges of the closures, and furthermore, would negate all of the input that fishermen have provided to inform the draft rules under development.

Draft Whale Rules and Biological Opinion In June, GARFO submitted its draft whale rules and accompanying Draft Environmental Impact Statement (DEIS) to the Office of Management and Budget (OMB) and the Office of Information and Regulatory Affairs (OIRA) for review. These agencies have 90 days to review the draft rules and may request an additional 30 days, if necessary. It is common for this review to result in modifications to the draft rules. NMFS anticipates that the draft whale rule and DEIS will be published in late summer or early fall, which will begin the formal public comment process. NMFS will schedule public meetings, which may be done online due to the pandemic, to present an overview of the draft plan and to take comments. NMFS also intends to publish the draft Biological Opinion when the draft whale rules and DEIS are released. The draft Biological Opinion will be released to the New England Fishery Management Council and Atlantic States Marine Fisheries Commission to allow an opportunity for these councils and the public to ask questions and ensure there is clarity around GARFO’s finding. NMFS expects to complete the final rule and final Biological Opinion by the end of May 2021.

Issues under dispute in Federal Court Case

In April 2019, the federal court ruled that NMFS violated the Endangered Species Act when it issued its 2014 Biological Opinion for the American lobster fishery without including an Incidental Take Statement for North Atlantic right whales. The court is now in the remedy phase to bring NMFS, and in turn the American lobster fishery, back into compliance with the law. The following issues will be addressed in this remedy phase:

When can NMFS issue a new Biological Opinion and draft rule? Plaintiffs want it by end of January 2021. NMFS says it can’t complete it until end of May 2021. Intervenors support NMFS’s position. What interim remedies should be implemented while the case is resolved? Plaintiffs want NMFS to prohibit permitting of vertical lines in an area around Nantucket, Massachusetts, while NMFS completes a new Biological Opinion and Incidental Take Statement (ITS) for right whales. NMFS opposes this because it would not allow for adequate public comment or proper analysis of the closure. Intervenors support NMFS’s position. What should happen to the 2014 Biological Opinion? Plaintiffs request that it be vacated, or no longer valid. NMFS argues that the 2014 Biological Opinion should be remanded to it so it can be replaced by a new one in 2021 to avoid closure of the lobster fishery. Intervenors support this position.


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