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Steaming Ahead - July 2021

In late May the National Marine Fisheries Service (NMFS) published the final Biological Opinion. The Final Whale Rule, however, won’t be released until at least September. The substance of the Biological Opinion is nearly identical to the draft version — the lobster fishery was not found to jeopardize right whales as long as it implements the Conservation Framework to reduce risk to right whales by 98% over the next ten years.

The view ahead is looking stormy for Maine's lobstermen.

A jeopardy finding could have resulted in the shut down of the lobster fishery, so the non-jeopardy finding is welcome news. The full suite of risk reductions will not be implemented immediately, which gives the lobster industry time to figure out how we will survive these measures.

NMFS has structured the Biological Opinion and the pending Final Rule to go hand-in-hand. The lobster industry’s first 60% risk reduction called for by the Conservation Framework will be achieved through the implementation of the Final Rule. While we don’t know for sure exactly what the rule will say, it is likely to be similar to the Proposed Rule—adding more traps per trawl and weak points to remaining endlines. Maine may also be subject to a massive closure from October to January, which runs the length of Zones C, D, and E along the Area 3 line. By 2023, the Conservation Framework will require the gillnet and other Atlantic trap/pot fisheries to make their 60% risk reduction as well.

After that, in 2025 all federal waters fixed gear fishermen take an additional 60% risk reduction followed by an 87% risk reduction in 2030. It is clear that NMFS envisions the lobster industry achieving this full risk reduction through some form of ropeless fishing.

The 98% risk reduction threatens to end the lobster fishery as we know it. Even if the lobster fishery were to reinvent itself and establish a new business and operational model, I fear that ropeless fishing will create incentives for consolidation of the fleet and could risk the demise of Maine’s owner-operator model. That model has been instrumental in sustaining Maine’s very diverse fleet, composed of thousands of small, medium and large lobstering operations, which for generations has kept Maine’s coastal economy alive and created one of the most sustainable fisheries in the world.

The MLA remains very concerned that NMFS did not address the scientific deficiencies it raised that are driving this level of risk reduction. NMFS did not address its “worst case scenario” assumptions in its new right whale population projection model that inevitably lead to the grim prediction that the right whale population will continue to decline even after the risk reduction goals are fully met.

For example, NMFS assumes that right whales will continue to reproduce at the low rates that occurred from 2010 to 2018. The use of this narrow window includes the worst year on record — 2018 when zero right whale calves were observed — and misses the best year on record — 2009 — when 39 right whale calves were observed. It also does not include the three most recent years during which 7, 10 and 18 right whale calves were observed.

Using the “worst case scenario” also means that NMFS assumes that whales will continue to die and suffer harm in Canada, and in the U.S. due to ship strikes, which drives the necessity for a near shut down of the lobster fishery.

I will repeat the MLA’s long-standing concern: the lobster fishery alone cannot save right whales.

The publication of the final Biological Opinion also means that the court case in the Washington, DC District Court is active again. Last year, the judge found the preceding 2014 Biological Opinion on the lobster fishery invalid and ordered NMFS to complete the new Biological Opinion by May 2021 to bring the fishery into compliance with the Endangered Species Act (ESA) and avert a fishery shut down. Following the publication of the final Biological Opinion, NMFS promptly filed a motion for entry of judgement, claiming that “completion of the superseding biological opinion effectively ended this litigation, and there is no further action for the court to take.”

The plaintiffs, comprising four conservation groups, opposed NMFS’s motion and are seeking further action from the court. The plaintiffs asked the court to enforce its previous ruling “holding the National Marine Fisheries Service’s 2014 biological opinion on the continued operation of the American lobster fishery unlawful and its subsequent opinion and order of remedy of August 19, 2020.”

The plaintiffs argue there were four alleged violations in the original complaint and publication of the Biological Opinion satisfies only one of those. Specifically, they argue that NMFS issued the new Biological Opinion but failed to include a lawful Incidental Take Statement (ITS) authorizing deaths and serious injury of right whales. The plaintiffs allege, “Instead of issuing a biological opinion that complied with the ESA and the Court’s Opinions and Orders, NMFS issued the 2021 BiOp with the same “straightforward” violation of the ESA as the 2014 BiOp: the failure to include a lawful ITS after finding that the lobster fishery will continue to kill and seriously injure North Atlantic right whales.”

The plaintiffs asked the court to deny NMFS’s motion to end the case, and instead require the agency to bring the lobster fishery into compliance with the ESA within 60 days. The MLA and other intervenors have until early July to respond.

As the old saying goes, “It ain’t over til the fat lady sings.” This opera has been going on for a very, very long time. We are up against it once again and the stakes for the lobster fishery have only gotten higher. We truly have a lot on the line right now, and I am incredibly grateful that the MLA has a talented legal team to guide our industry through this morass. The MLA’s legal team is a top-notch squad of incredibly sharp, thorough and skilled people who are in this for the long haul.

We really do need your help. We need you to continue your support of the MLA and the Legal Defense Fund. The lobster industry must work together to raise funds so we can hire the best of the best. If we don’t, we will let the environmental community continue to get away with twisting the data on how and where right whales are being harmed and allowing NMFS to take the easy way out by using unrealistic assumptions and ignoring the best available data to continue its assault on our lobster fishery.

Let’s stand together and fight — this fishery is worth saving!

As always, stay safe on the water.

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