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Whales and Risk Reduction – What is Happening and When?

First published in Landings, November 2022

Every lobsterman wants to know if they really need to reduce risk by 90%, what measures will be implemented to achieve that, and how long they have before it is put in place. And what happened to the 98% risk reduction? The answers are neither simple nor clear.

NMFS has set the risk reduction for the next whale rule at 90%. The risk reduction must be achieved within six months of implementation of the Final Rule. NMFS claims that this risk reduction is based on the best available science. The only way this could change is if the Maine Lobstermen's Association (MLA) is successful in its litigation against NMFS, which challenges the agency’s use of the science.

Chart courtesy of NMFS.

When the 90% risk reduction rule must be completed and the fate of the federal lobster fishery will be determined by Judge Boasberg of the D.C. District Court in the CBD vs Raimondo case. In this case brought by the environmental groups, the Judge Boasberg found that both the new Final Rule and new Incidental Take Statement (ITS) are not legal.

Briefings from all parties on how to resolve this case were completed in late October. The environmental groups initially requested the Court require both a new whale rule and new Biological Opinion be completed by NMFS within six months. NMFS requested the Court give them until December 2024 to finalize the new whale rule and until at least 2030 to issue a new Incidental Take Statement (ITS). The MLA and Department of Marine Resoruces (DMR) both requested the Court give NMFS the time it requested but noted that issuing a new rule by 2024 and a new ITS by 2030 is overly ambitious. In their final filing, the environmental groups conceded that NMFS needs until December 2024 to issue a new whale rule and Biological Opinion.

While it is anticipated that the Court will tell NMFS to complete a new whale rule within a specified time frame, it is important to remember that the Court could choose a different solution. It is less certain how the Court will resolve the ITS, which is required for NMFS to permit the federal lobster fishery. The Judge is expected to rule by the end of 2022. (To better understand the complexities of the issues in this court case and how it impacts the lobster fishery, read the Declaration of Michael Pentony on page 8.)

How to achieve the 90% risk reduction will be decided by NMFS. While NMFS will consider input from the Take Reduction Team (TRT), the states and other stakeholders, NMFS has final say in what measures are implemented. As was learned during the last round of rulemaking, it could be something that was never discussed during the process, like the LMA 1 Closure. NMFS has stated that new whale measures will be extreme.

According to NMFS, any new management plan will likely include 1) keeping the May 2022 measures in place; 2) targeted large-scale closures where gear is entirely removed from the water and brought to shore for extended periods as opposed to being redeployed elsewhere; 3) broad vertical line reductions (achieved through trap allocation reductions, use of a single vertical buoy on lobster trawls, increased use of ropeless fishing technology, or other means); and 4) expanded use of weak rope or weak links. As an example, NMFS determined that closing all federal fixed gear fisheries falls short of the 90% goal and achieves only 85% risk reduction, assuming that all of that gear is brought to shore.

The 98% risk reduction mandate by 2030 hasn’t gone anywhere. The May 2022 measures were just Step 1. Getting to 90% risk reduction will be Step 2, and then NMFS will come back for more risk reduction to achieve a 98% reduction by 2030. NMFS is pushing hard for ropeless fishing because they cannot envision any other way to achieve a 98% risk reduction.

The MLA sued NMFS (MLA vs NMFS) in September 2021, challenging the scientific basis of NMFS's risk reduction mandate. MLA argues that NMFS has overestimated the lobster industry’s risk to right whales by cherry-picking the science and using unsupported assumptions and “worst-case scenarios.” Judge Boasberg rule against MLA in September 2022 in an opinion that deferred to NMFS on all counts without disputing the validity of MLA’s concerns over how NMFS used the science.

The MLA immediately appealed this decision and has been granted an expedited appeal schedule that will conclude briefings by all parties in early January 2023. The MLA’s goal is to overturn Judge Boasberg’s ruling — either at the Appeals Court and if not successful there, at the Supreme Court — so that the MLA’s case can go back to District Court to be heard on its merits. If the MLA case is successful, the Court will force NMFS to reevaluate its science and methods to set risk reduction goals which reflect the actual risk posed by the fishery.

The MLA’s goal is to save Maine’s lobster fishery and preserve the state's fishing heritage. If the MLA is not successful in its litigation strategy, the current risk reduction mandates of 90% and ultimately 98% by 2030 will remain. The lobster fishery as it currently exists will be eliminated.

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