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Along the Gulf of Maine, lawsuits over North Atlantic right whale regulations coming to boil

Judges are expected to weigh in on a series of lawsuits later this year that pit the New England lobster industry against the fate of the approximately 336 North Atlantic right whales left in existence.

(CN) — Lobsterman Brian Cates lives so far at the edge of Maine he can look out the windows of his house and see Canadian boats out in Canadian waters. It puts the fourth-generation lobsterman living on the eastern-most extreme of the U.S. in a situation unlike many of the lobstermen up and down the New England coast.

Years ago, Cates said that he and other fishermen around Cutler, Maine would go into the woods in the winter when the fishing slowed and cut pulp wood to sell to the local paper mills. But the paper mills went away. And over the last decade or so, more individuals have been turning to lobstering to earn a living, Cates said.

Over the last few years, lobstering has been good for the industry most associated with Maine, an industry that supports communities up and down its coasts. In February, Maine announced that in 2021 lobstermen hauled in 108 million pounds of lobster, netting a record-breaking $724.9 million.

But Cates and other New England lobstermen are worried about how the coming regulations issued by the National Marine Fisheries Service will affect their livelihoods.

The rules are intended to protect the approximately 336 North Atlantic right whales still alive today, once the prey of the historical whaling industry.

Thanks to changing ocean temperatures altering their feeding ground, some of the right whales’ biggest threats are being struck by ships and being tangled up in fishing rope, where tight cords cause drowning, starvation or infection

By May, U.S. lobstermen are set to change up their gear, adding links of weaker rope to their trawl lines, adding more lobster pots to the trawl line connecting to one buoy to reduce the number of ropes in the water.

Out there on the eastern-most edge of the United States, though, Cates fishes in disputed waters. There, around the mouth of the Bay of Fundy, there’s a strip of ocean claimed by both Canada and U.S. alike called the grey zone.

Cates fishes up against Canadian lobstermen, their traps and lines often getting caught up on one another. And the rules coming down from the federal government are not helping, Cates said.

Canadian fishermen don’t follow the same rules intended to mitigate whale entanglements, Cates said.

“If we have to put these weak links in our lines, we're gonna end up losing a lot of gear. … It's effectively going to put us out of business out there. We won't be able to compete,” Cates said.

Lobstermen down the New England coast say the changes come with little justification, that there’s scant evidence their actions lead to whale mortalities and it’s been almost two decades since a right whale was tangled up in Maine lobster gear. But conservationists say that without drastic action, right whales will continue to tangle up in fishing gear and die at a faster rate their population can recover and grow.

The question is the subject to a handful of lawsuits — lawsuits that pit conservation groups such as the Center for Biological Diversity, the State of Maine, National Marine Fisheries Service and industry groups such as Maine Lobstering Union Local 207.

Attorneys involved in the lawsuits say they expect judges involved in the cases to issue some decisions in the summer and fall of this year.

In the U.S. District Court for the District of Columbia, Judge James Boasberg is hearing one lawsuit initiated by a group of conservation groups who say the National Marine Fisheries Service did not follow the law when it created the current biological opinion to address the risk to right whales. Then, Boasberg is hearing another suit brought by stakeholders in the lobster industry who say the agency didn’t rely on the best available science when it created the biological opinion.

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In the federal court in Maine, the lobster industry is challenging a portion of the rules that mandate a seasonal closure of a strip of ocean off the coast of Maine. A preliminary injunction of the closure of fishing grounds has been appealed to the First Circuit.

Meanwhile, the ocean is vast, dark and deep and researchers cannot observe everything about the right whales.

When Amy Knowlton began researching the North Atlantic right whale in the 1980s, there were some basic facts about the whales they were just discovering.

“We didn't even know back then that they were the same whales we saw on the Bay of Fundy were whales that were showing up with the babies in the southeast U.S.,” Knowlton said.

Today, Knowlton is a senior scientist at the New England Aquarium’s Right Whale Research Program.

“They’re considered the grazers of the ocean, like mowing the lawn when they feed, basically finding a patch of plankton and sort of slowly grazing through those patches,” Knowlton said of the right whale, a whale that can be readily identified by the V-shaped blow it makes when it surfaces to breathe.

Knowlton said recent studies suggest that researchers have not observed all the right whale deaths. Some of the whales may, for instance, drown in deep water.

“We call that cryptic mortality,” Knowlton said. “Basically for every carcass observed, there’s maybe up to three carcasses that are not observed.”

For years, researchers have kept a database of whale sightings. Based on the patterns on the whales’ bodies of rough white skin called callosities, the researchers will identify the whales. For some, they give them names based on the body markings. Names such as Snow Cone or Batman.

They comb through thousands of photographs taken of whales and post finings in the North Atlantic Right Whale Catalog.

The images also show scars where rope from pots fishing operations and other fishing line cut into whale’s skin. By tracking the animals and the scars on their bodies, researchers and NOAA believe that 85% of North Atlantic right whales have been tangled up in rope at least once.

But tracing where the animals became entangled is a much more difficult task, Knowlton said.

In the 80s, the number of times the whales were entangled in rope, or their bodies showed signs of scarring was rare — maybe only two or three times a year, Knowlton said.

But that changed in the mid-1990s with advances in rope manufacturing. Engineering in the plastic made the ropes tougher. Rope manufacturers marketed their products as being as strong as steel, Knowlton said.

But by rating the kinds of entanglements, Knowlton and other researchers have said the kinds of engagements are getting more and more severe, the ropes cut deeper and deeper as time goes on.

In a study, Knowlton said right whales were getting tangled up in heavy rope, and that’s why she and other right whale researchers to recommend that ropes be weakened so that they break at 1700 pounds of force.

Kristen Monsell, senior attorney with the Center for Biological Diversity, said that right whales don’t die of old age anymore. They die from interactions with humans — something that could change with better protections from the federal government.  

“The agency has been violating both the Endangered Species Act and the Marine Mammal Protection Act when it comes to managing the lobster fishery since the inception of these statutes,” Monsell said. “They've never met the required standards. They've never authorized any incidental take, which means that all of the entanglements that are occurring are unlawful.”

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Meanwhile, lobstermen feel like they’re in a vice, said Billy Bob Faulkingham, a Republican representative in the Maine Legislature.

The legal fights prompted Faulkingham, a fifth-generation lobsterman himself, to sponsor a bill that would create a legal defense fund that would go towards some of the litigation.

The newest regulations that mandate gear modifications cost Faulkingham about $20,000 to $30,000. His 40-foot boat is named “51,” the basketball number of his cousin, who died in a car collision when he and Faulkingham were both 17.

In the meantime, the state of Maine intervened in two of the lawsuits, saying that if the conservation groups prevailed, it could mean the closure of the Maine fishery. At the beginning of February, the state’s governor and its delegation to Washington asked the federal government to push of the implementation of the rules from May to July.

According to Faulkingham, the federal government’s rules that closed a strip of ocean almost 1,000 square miles off the coast of Maine was a “slap in the face,” Faulkingham said.

The National Marine Fisheries’ rule banned vertical rope in a section in the Gulf of Maine seasonally from October to January, implementation of which was blocked by a temporary restraining order in October. The First Circuit disagreed and reinstituted the closure in November.

According to the lobstermen, it was the first time that a large closure had come to Maine waters.

“Up here in Maine, we have resisted closures,” Faulkingham said. “We've done everything to avoid closures. And that's why it was really maddening to get this closure. Because before now, we've always done everything to comply. ... And everything we've done has worked. We haven't entangled the whales.”

Faulkingham said he felt like the voices of the lobster industry was drown out when the federal government was drafting new rules. The industry, he said, is made up of about 5,000 lobstermen, all small businesses.

“We’re not super organized. We have a couple organizations, but they don’t raise a ton of money,” Faulkingham said.

To the south of Maine, Beth Casoni, executive director of Massachusetts Lobstermen’s Association, said “Massachusetts is ground zero” for the relationship between lobstermen and right whale.

Right whales have slipped into Cape Cod Bay for years. And New Bedford used to be the beating heart of the young nation’s whaling industry.

“People don’t realize that fishermen are stewards of the sea and without a healthy and clean ecosystem, there would be no lobster fishery,” Casoni said.

About three years ago, Massachusetts lobstermen started testing out weak rope to add to their lines — sections of rope designed to break at 1,700 pounds of force.

When the right whales swim through, more than 9,000 square miles of water becomes closed to fishing with the standard vertical lines in the water. Lobstermen in the commonwealth’s waters cannot use rope that’s thicker than 3/8 inch thick, Casoni said, and most of the rope taken from dead whales is a half-inch thick or greater.

The state has also gained ground with the amount of risk reduction measures it has accomplished to prevent right whale entanglements.

“Massachusetts has endured some of the most draconian right whale conservation measures anywhere period, in the United States and or Canada,” Casoni said.

But the closures are difficult on the industry. Even a short closure could mean months where no money is coming in for a lobsterman who has to pull in all their traps ahead of a closure and then put them all out again when the closure passes, Casoni said.

Off the coast of Maine, David Horner picked up his phone. His boat was dragging a steel dredge, fishing for scallops.

The fisherman who also sits on one of Maine’s Lobster Zone Councils and the lobster rules change all the time, he said, but these make little sense.

Lobstermen worry that the weak links may snap or snarl up in the equipment used to haul up the lines, Horner said. The zone closures, he said, may cause lobstermen to set their pots close to the zone, creating a dense field of lines through the water. “And I would think creates a greater hazard for the whales than then having stuff spread out,” Horner said.  

“We'll survive it, but it's a bunch of nonsense, it's all,” Horner said. “We don't kill right whales. I like whales just as much as you do. And if I was killing 'em I'd stop what I'm doing. There hasn't been a right whale fatality due to Maine fishing gear in decades.”

After a couple minutes, Horner said he had to go. The dredge was coming up.

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