US judge says lobster-fishing restrictions don't go far enough in protecting right whales

A federal judge has ruled that the National Marine Fisheries Service’s rules governing the lobster industry continue to violate the Endangered Species Act by failing to adequately protect critically endangered North Atlantic right whales.

U.S. District Judge James Boasberg, who presided over an earlier ruling that the American lobster fishery violates the ESA in 2020, again found that current NMFS rules are not adequate to protect right whales. The ruling found that the NMFS biological opinion, and the lobster industry, is in violation of the ESA because it would potentially kill or injure right whales at “over three times the sustainable rate,” according to the NMFS.

The NMFS and NOAA Fisheries unveiled new regulations in 2021 intended to help put the fishery and the agency back into compliance with the ESA and the Marine Mammal Protection Act after Boasberg’s initial ruling. The new rules have been harshly criticized by the lobster industry, and the Maine Lobstermen’s Association has filed suit against the NMFS and the U.S.Secretary of Commerce challenging the rules.  

Despite the objection of the MLA and others that the rules are too onerous, they still fall short of the necessary standards, according to the new ruling – which came about after a new lawsuit by the Center of Biological Diversity.

According to Boasberg, the NMFS’s biological opinion and its 2021 Final Rule didn’t meet high enough standards, or go far enough to protect whales.

“The court therefore declares the 2021 [biological opinion] and 2021 Final Rule invalid. The court recognizes that this may seem a severe result for the lobster industry and NMFS. But no actor here – neither the court nor the service – operates free from the strict requirements imposed by the MMPA and ESA,” Boasberg wrote.

The ruling was hailed as a victory by the Center of Biological Diversity.

“This is a huge victory in the fight to save these profoundly endangered whales from extinction,” Center for Biological Diversity Oceans Legal Director Kristen Monsell said. “Lobster gear is a deadly threat to right whales, and the courts are telling the federal government to quit stalling and start taking real action. The Biden administration has to work much harder to help the industry prevent these agonizing, deadly entanglements.”

The Maine Lobstermen’s Association said the industry “would not go down without a fight.”

The association has asserted repeatedly, and in its new lawsuits, that the right whale risk estimates are based on flawed information and that the industry poses no threat to the whales.

“MLA’s case demonstrates that the government’s order for a 98 percent reduction in the lobster fishery’s minimal risk to right whales rests solely on hypothetical, inflated estimates unsupported by the agency’s own data,” the MLA said in a release. “These are issues that MLA believes the court must direct the agency to examine rigorously.”

As for the industry itself, Boasberg recognized that closing the industry could be disastrous for the economies of the U.S. Northeast, especially the U.S. state of Maine, where the industry is estimated to contribute over USD 1 billion (EUR 993 million) to the economy.

“The court’s findings at this juncture do not dictate that it must immediately shutter the American lobster fishery; Indeed, it is cognizant of what a weighty blow that would inflict,” Boasberg wrote. “Instead, the court will order additional briefing as to potential remedies, which may include remand with or without vacatur.”

Maine Lobstermen’s Association Executive Director Patrice McCarron said the association will continue to work on a defense of the industry.

“We are still reviewing the court’s opinion with our lawyers, but we are heartened that the court recognizes the great importance of Maine’s lobstering heritage and appreciates the potential and unnecessary harm that could be imposed on the men and women who work so hard to make our industry thrive,” she said.  

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