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Right whale debate heats up

The past several months have seen a flurry of activity related to the question of how best to protect North Atlantic right whales in the face of changing environmental conditions in the Gulf of Maine and elsewhere. To help Maine lobstermen understand the range of events taking place, we provide a summary of this past month’s activity, with links to the primary documents or articles for further reading.

NOAA response to Maine Lobstermen’s Association withdrawal from the Take Reduction Team agreement

In late August the Maine Lobstermen’s Association (MLA) informed Chris Oliver, Assistant Administrator for NOAA Fisheries, that due to flawed data, it could no longer support the Take Reduction Team (TRT) agreement mandating Maine reduce the risk of serious injury or mortality to right whales by 60%. To reach that goal, Maine lobstermen would have to remove 50% of vertical lines from the water and place weak toppers on their lines. MLA argued that the National Marine Fisheries Service (NMFS) has underestimated the risk posed by Canadian fisheries in setting the U.S. risk reduction goal and has assigned the full risk reduction to the Northeast lobster fishery ignoring other U.S. fisheries that interact with right whales. The MLA discovered serious flaws in the NMFS’s data, which point solely to the Northeast lobster fishery as the source of right whale serious injury and mortality. NMFS data show that the Canadian snow crab fishery accounts for 31% of serious injury and mortality, gillnet and netting gear accounts for 13%, unknown trap/pot gear represents 4%, and U.S. trap/pot gear represents just 4%. U.S. and Canadian vessel strikes account for the remaining 48%. In addition, the MLA noted specific inaccuracies in the information presented to TRT members at the April meeting. In its response to the MLA letter, NOAA said it was “disappointed” in the MLA’s decision. Referring to the association’s statement about NOAA’s data, “The Maine Lobstermen’s Association presented some information to suggest that the risk reduction target of 60% was higher than necessary and noted the risk of entanglement posed by other fisheries. NOAA Fisheries is reviewing the letter, as well as conducting additional analysis, and looks forward to working with the MLA on any clarifying questions or concerns.” Read NOAA's response to MLA's Take Reduction Team agreement withdrawal here.

Massachusetts Congressman attacks MLA on withdrawal from TRT agreement

On September 17, on a teleconference organized by the International Fund for Animal Welfare, Massachusetts Representative Seth Moulton said the Maine Lobstermen’s Association was “shortsighted” in its decision to withdraw support for the plan that centers on removing enough vertical lobster buoy lines from the region’s waters to produce a 60 percent reduction in serious right whale injuries and deaths. “I think the lobstermen in Massachusetts are being really smart. I think right now the lobstermen in Maine are being shortsighted. But we hope to bring them back on board, because ultimately they’re going to be better off having a seat at the table than not,” Moulton said.

Patrice McCarron speaking to the media. Photo courtesy NewsCenter Maine.

In response, MLA executive director Patrice McCarron wrote to the Gloucester Times, where the article was first published, saying, “Contrary to the congressman’s characterization, the MLA remains engaged in the (Take Reduction Team) process and will continue to work with the agency and our members to identify measures to reduce the risk that the Maine lobster industry poses to right whales. However, the MLA cannot support the Northeast lobster fishery being singled out as the sole source of entanglement risk.” McCarron continued, “As NOAA has stated many times, protecting every individual right whale is a priority in order to avoid the species’ extinction. The MLA is asking the agency to step up and do its job by using the best available data to address threats from all fisheries that threaten the recovery of right whales. We have identified to NOAA a number of significant errors in their analysis of available data on sources of human-caused risk to whales, and the agency is reviewing the points we raised.” Read Congressman Moulton's comments in the Gloucester Daily Times here .

NMFS August scoping meetings and comments under review

NMFS held four scoping meetings in Maine to gain feedback on the proposed right whale rule during August, as well as one meeting in New Hampshire, two in Massachusetts and one in Rhode Island. More than 500 people attended the four meetings in Maine. During the comment period, which closed on September 16, NMFS received 27,184 emails; 26,747 appear to have been sent as a result of campaigns by several major environmental organizations. NMFS reported that it received 437 unique email comments on the rule, most of which came from Maine residents. More than 150 letters were received as well, 33 of which provided what the Agency termed “great input on operational challenges, costs, etc.” NMFS will next create summaries of comments received, which will guide its analyses for a Draft Environmental Impact Statement (DEIS). The DEIS is scheduled for release for public comment later this year.

Governor Mills statement on proposed right whale rule

Photo Courtesy of Knox Village Soup.

On September 19, Governor Janet Mills sent a letter to NOAA’s Chris Oliver and released a press statement on the pending right whale rules. Governor Mills emphasized that NOAA should take into account where the true risk to the species lies, emphasizing that data shows most recent right whale deaths have occurred in Canada. Governor Mills also highlighted the importance of the lobster industry to the state and underscored its commitment to conservation. “Maine fishermen have been at the table for over twenty years as partners with the federal government, conservation community and other fisheries as the Atlantic Large Whale Take Reduction Team has worked to develop and implement regulations including gear markings, weak links, sinking groundline, and vertical line reductions. The entanglement records suggest these efforts have been successful. In the last decade, there have been zero right whale serious injuries or mortalities linked to the Maine lobster fishery. However, even with this record, the lobster fishery is being asked to do more,” Mills wrote. “Data is clear that Canada is responsible for the vast majority of recent deaths, with 8 right whale deaths occurring this year alone. This should not be a surprise. Studies show right whales are spending more time in the Gulf of St. Lawrence at a time when Canada has weakened its protection to right whales. The Maine lobster fishery and the Department of Marine Resources remain dedicated to strengthening protections to right whales, but we continue to stress that NOAA’s focus must take into account where the true risk lies.” Read Governor Mills' official communication to NOAA on the right whale rule, defending Maine’s lobster industry here.

DMR comments to NOAA on proposed right whale rule

On September 16, the Maine Department of Marine Resources (DMR) submitted official comments to Michael Pentony, regional administrator of the NMFS, on proposed right whale rules. The comments noted that “In 2018, landings from the Maine lobster fishery were valued at over $486 million and a recent economic study determined the fishery has an economic impact of an addition $1 billion annually. This fishery not only encompasses the roughly 4,800 lobster license holders and 1,100 student license holders but also sternmen, dealers and distributors, bait dealers, and trap builders who contribute to this fishery and their communities. Understanding the full impact of these pending regulations on the Maine lobster fishery, and to the North Atlantic right whale population, will be critical to ensure the appropriate suite of measures is implemented.” DMR’s comments went on to ask NOAA specifically to “consider the impacts to industry versus the conservation benefits of establishing regulations within the exemption line. Taking extensive action in areas where right whales rarely, if ever, visit will not have a measurable impact on the right whale population.” DMR also asked NOAA to “include a method for conservation equivalency within the proposed rule… Allowing for conservation equivalency in the rule-making provides an opportunity for fishermen to develop equivalent, or more conservative, regulations in their region to meet the requirements of the ALWTRP. This flexibility is needed to ensure not only the long-term success of the lobster fishery but also the protections provided to right whales.” The comments end by highlighting the role that Canada continues to play in right whale injuries and mortalities. “Specifically, entanglement records indicate the full risk reduction outlined by NOAA should not be solely on the Northeast lobster fishery and the apportionment of risk to Canada should reflect the stark increase in right whale mortalities resulting from the snow crab fishery and Canadian vessel strikes. ME DMR underscores that placing further regulations on the Maine lobster fishery will not improve the status of the right whale population if mortalities are happening elsewhere.” Read DMR's official comments to NOAA on the proposed right whale rule here.

MLA comments on proposed right whale rule

On September 16, the Maine Lobstermen’s Association (MLA) submitted its comments on the proposed whale rule, which would require the state’s lobstermen to achieve a 60% risk reduction to right whales. The comments stated that “The MLA will support measures that are based on the best available science and appropriately designed to achieve the Potential Biological Removal (PBR) level to support the recovery of endangered right whales. To achieve this, the scope of management alternatives must accurately reflect the risk posed by each commercial fishery contributing to serious injury and mortality from entanglement.”

DMR and the MLA have met with the state's Congressional delegation many times about the whale rules.

In its comments the MLA asserted that NMFS “has ignored its data on known causes of serious injury and mortality from entanglement including the significant increase in incidence of Canadian fishing gear and contribution of all commercial fisheries involved. This has resulted in an overstatement of the risk from U.S. fisheries and the erroneous assignment of responsibility for U.S. risk reduction solely to the Northeast lobster fishery.” After analyzing NMFS’s data, MLA found that the agency had incorrectly laid most of the burden for reducing risk to right whales at the feet of the Northeast lobster fishery. “The MLA’s analysis showed that NMFS’s stipulated risk reduction is unsupported by the best available data. First, NMFS incorrectly allocated the full responsibility for U.S. risk reduction to the Northeast lobster fishery, ignoring the role of other fisheries known to entangle right whales. Second, NMFS under-represented the role of Canadian fisheries in its calculations by ignoring the most recent entanglement data. Third, NMFS did not investigate trends in right whale entanglement in unknown gear. As a result, the data presented to the TRT and fishing industry overstated the share of risk attributable to the Northeast lobster fishery and downplayed the role of other gears and Canada. The consequence of NMFS’s mistakes, if uncorrected, will be to ignore recent changes in the pattern of interactions between right whales and human-caused risk, which in turn will create a mismatch between risk-reduction efforts within the scope of this rulemaking and the best information available about the sources of risk to the species.” Read MLA's official comments on the proposed right whale rule here.

Environmental organizations’ comments on proposed right whale rule

On September 16, in a joint letter the Center for Biological Diversity, Conservation Law Foundation, Defenders of Wildlife, The Humane Society of the United States, The Humane Society Legislative Fund, and Whale and Dolphin Conservation submitted their comments to Michael Pentony at NMFS. The groups “…request that NMFS take the following actions: Immediately: Validate and update its decision support tool with up-to-date right whale sightings and acoustic data for use in the forthcoming Draft EIS.” This is in response to the computer model referred to as the “decision support tool” introduced by NMFS at the April TRT meeting to quantify risk reduction achieved by various management proposals. The groups also asked NMFS to establish a new seasonal protected area south of Martha’s Vineyard and Nantucket in which ropeless fishing would be allowed, and expansion of the existing winter closed area in Massachusetts Bay, to allow no more than one endline in Lobster Management Area 3 year round, place a cap on the number of vertical lines in all U.S. fixed gear fisheries in the region, and increased gear marking for all fixed gear fisheries. Concerning the cap on vertical lines, the comments note that “While much focus has been on vertical line reductions in the lobster fishery it is inappropriate for NMFS to require a reduction in vertical line use in lobster fishing while issuing permits for other fisheries in which vertical line risk exists….North Atlantic right whales are known to become entangled in gillnet gear. According to NMFS’s right whale incident data, up to 35% of known gear incidents since 2009 were identified with or included descriptions consistent with gillnetting.”

Maine Congressional delegation comments on proposed right whale rules

On September 17, Maine’s Congressional delegation—Senators Susan Collins and Angus King and Representatives Chellie Pingree and Jared Golden—submitted their comments on the proposed right whale rule, calling for additional gear markings, new data collection, and a regulatory exemption for lobstermen operating in shallower waters. “Over the last several months, we have had a number of conversations with lobstermen, the scientific community, environmentalists, and state regulators. The message has been undeniably clear: these whales require increased protections in order to ensure the viability of the species — and that focusing all of our risk reduction efforts on Maine’s lobster fishery will not get us there.” The delegation stated its support to preserve the existing exemption line in Maine waters in any future regulations and urged NMFS to consider the safety and economic implications of the rule. “The misperception that Maine’s lobster fishery is the primary cause of North Atlantic right whale serious injury and mortality relies on data that was collected before Maine fishermen made critical changes to protect this species… Continuing to place the burden squarely on lobstermen is not only unfair to them, but it will fail to accomplish our shared goal of saving this endangered species.” To see the official letter, click here.

DMR proposes changes to gear marking

To ensure that any line found on whales could be definitively identified, in September DMR proposed changes to gear marking. Current regulations require individuals fishing lobster gear and trap/pot gear to mark their buoy lines with three 12” red marks in the sliver area and in federal waters. DMR is proposing a new regulation that removes the requirement for the red marks and replaces it with a requirement for all lobster gear and trap/pot gear to be marked with three purple 12-inch marks: one at the top of the buoy line, one midway along the buoy line, and one at the bottom of the buoy line. In addition, each buoy line must be marked with a 36-inch purple mark in the top two fathom of buoy line. This would be required for all Maine lobstermen including gear fished in Maine’s exempted waters. Vertical lines fished in Maine’s exempt waters would be required to have an additional green mark of a minimum of 6-inches in the top two fathom of buoy line, which could be removed if gear was shifted outside of this area. DMR proposed to implement the new gear marking requirements by April 1, 2020. DMR is also proposing to collect data on where Maine lobster gear is fished by 10 minute square, rather than by distance from shore, as part of the state’s mandatory harvester reporting program. A public hearing on the proposal will be held on October 2; written comments can be submitted until October 14.

Another dead right whale

A large male right whale, estimated to be forty years old, was found dead off Long Island, New York, in September. This is the tenth right whale mortality in 2019. The whale had last been seen entangled in the Gulf of St. Lawrence on August 6, after being seen gear-free there on July 16. This is his first sighting since the entanglement. In a Newsday article, Philip Hamilton of the New England Aquarium noted, “The real clincher was seeing that pattern of the line that had been embedded in his head which matched exactly” with the last video of him . Three other right whales were seen entangled in the Gulf of St. Lawrence during the summer; nine had previously died in Canadian waters this year. Read NOAA's report here.

Whale activist sues NMFS, Maine DMR

In August, Max Strahan, of Durham, New Hampshire, who heads a group called Whale Safe USA, filed a suit in the U.S. District Court in Bangor against the National Marine Fisheries Service and Maine’s Department of Marine Resources. He alleged that by permitting lobstermen to use vertical buoy ropes in their fishing gear the two agencies are killing and entangling endangered whales and sea turtles in violation of the federal Endangered Species Act (ESA). In April, 2018, Strahan filed a similar suit against the Massachusetts Executive Office of Energy and Environmental Affairs and the state Division of Marine Fisheries for violating the ESA. In his August suit against Maine, Strahan asked the court to stop the two agencies, immediately and permanently, “from further requiring that its licensed fishermen must use Vertical Buoy Ropes on their fishing gear.” Strahan said that action would force lobstermen to use other hauling methods that do not pose a risk of entangling endangered North Atlantic right whales and other marine species, such as green sea turtles. Strahan is well-known for filing numerous lawsuits against organizations, state and federal agencies, and individuals for the past thirty years in an effort to protect whales. Asked for a response to Strahan’s suit, DMR spokesperson Jeff Nichols said, “No comment on pending litigation.”

Massachusetts Attorney General calls for Canadian premiers, New England governors to collaborate on right whale protections

In a September 4 letter to the Coalition of Northeastern Governors and Eastern Canadian premiers, Massachusetts Attorney General Maura Healey called for a regional approach to protecting North Atlantic right whales by reducing the risk of collisions with ships and fishing gear entanglements. Healey, whose office is tasked with enforcing the state’s Endangered Species Act, said regional leaders should consider actions taken by Massachusetts in recent years, including restrictions on lobster traps and fishing gear, reducing vessel speed limits and seasonal closures in state waters when right whales are feeding. Massachusetts has a mandatory closure in and around Cape Cod Bay to all lobster pot or other trap gear fishing between February and April, which can be extended depending on whale movements. Healey’s letter asks other governmental bodies in the region to step up their efforts to protect the right whales. “I ask the NEG/ECP issue a Resolution committing to measures that significantly expand current right whale protections by further reducing the risk of ship strikes and fishing gear entanglements in our waters, and to act immediately on that Resolution,” Healey wrote. “Massachusetts, and its fishers, have long undertaken efforts to protect these whales as they migrate through our waters. Their fate is our shared responsibility.” Healey advocates for solutions to include weak rope and ropeless fishing and said the Northeast region needs to come together to help protect the species and urged provincial leaders in Canada to adopt tougher restrictions on commercial fishing. “We recognize, however, that such measures may not be sufficient, and that no state or province, acting alone, can solve this problem,” she wrote. “We must act now; with each whale death, especially the reproductive age females, we tip closer to losing the species.” Read Massachusetts Attorney General Maura Healey's official letter here.

Oceana launches right whale campaign, Maine Lobster Marketing

Collaborative continues to promote Maine’s long-standing stewardship Nonprofit conservation group Oceana released a short video in September asking viewers to lend their support to the group’s efforts to protect right whales. The 45-second video, featuring actor Sam Waterston, who serves on Oceana’s board of directors, was timed to put pressure on NMFS, which has proposed a rule to reduce right whale entanglements, and the lawmakers who are trying to exempt the New England lobster fishery from these regulations, Oceana campaign manager Whitney Webber said in an article in the Portland Press Herald ( Oceana wants regulatory agencies in both Canada and the U.S. to reduce the number of buoy lines in the water and reduce vessel speeds in places that right whales frequent. It also wants to limit seismic testing and wind projects on the whale’s Florida-to-Canada migratory path. Just prior to the announcement of the Oceana campaign, the Maine Lobster Marketing Collaborative released its own two-minute video, entitled “Maine lobstermen working to protect right whales.” The video highlighted the multiple efforts made by lobstermen in the past decade to protect right whales, including weak links in rope, mandatory sinking line and other gear modifications. Nearly 30,000 miles of rope have been removed from the water due to Maine lobstermen’s efforts. “We’re committed to helping the right whales. We just want to make sure that what we do actually helps the right whales,” said Kristan Porter, president of the Maine Lobstermen’s Association, in the video.

Scientists argue against DMR, MLA positions

Eighteen scientists from public and private organizations wrote a letter on September 17 to Senator Susan Collins expressing their dismay at efforts by the DMR, the MLA and Maine’s elected officials to “undermine proposed conservation measures critical to the North Atlantic right whale’s survival.” The scientists contend that letters from the MLA and elected officials “contain statements that do not reflect the facts in hand and minimize or ignore the changes needed to prevent the North Atlantic right whale from going extinct. Here we aim to set the record straight.” The letter argues that right whale mortality from entanglements is higher than observed, that whale entanglement rates are high, that entanglements occur everywhere there is fishing gear, and that the 60% entanglement risk reduction goal is biologically and legally defensible. “Entanglement in lobster and crab pot gear is undoubtedly contributing to the North Atlantic right whale’s looming extinction. There are additional threats to right whales that include shipping, ocean noise that masks whale communication, climate change, and fisheries interactions with other types of gear and in Canada. However, reducing entanglements in East Coast waters of the United States is a critical part of a comprehensive strategy for right whale survival and recovery. Over the last ten years, entanglement in fishing gear has been the main cause of population decline that, if continued, will be catastrophic to the species … It will also become an impediment to the pot fishing communities, which would likely be forced to close entirely, if the right whale population reaches a critically low level. As scientists, we call on Maine, together with all New England states and their representatives, to provide their full support for NOAA’s efforts to develop and implement new, effective, and science-based risk-reduction measures that will protect both whales and fishermen from the serious risks they both face.” MLA’s executive director, Patrice McCarron commented, “There is no new information in the letter. MLA is disheartened that the science community is not supportive of using the best available information and ensuring that the management strategy addresses the comprehensive array of risks that threaten the recovery of right whales.”


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