Federal Judge Finds Lobster Fishery Threatens Endangered Whale

North American right whales. (Photo courtesy of NOAA Fisheries)

(CN) — Finding federal management of the American lobster fishery threatens to drive the North Atlantic right whale — one of the first animals protected by the Endangered Species Act — into extinction, a federal judge Thursday ordered the National Marine Fisheries Service to comply with the act.

U.S. District Judge James Boasberg said in a 20-page order Thursday a 2014 finding by the National Marine Fisheries Service the American lobster fishery would not jeopardize the North Atlantic right whale population — of which there are 400 left in the world — violated the Endangered Species Act, granting summary judgment in favor of several conservation groups.

The 2014 Biological Opinion by the National Marine Fisheries Service failed to include an “incidental take statement,” rendering the opinion illegal under the Endangered Species Act, Boasberg found.

“The Service’s failure to include an ITS in its 2014 [biological opinion] after finding that the American lobster fishery had the potential to harm the North Atlantic right whale at more than three times the sustainable rate is about as straightforward a violation of the ESA as they come,” Boasberg wrote.

The Center for Biological Diversity and other conservation groups sued the federal government two years ago in Washington, claiming fishing gear line entanglements pose one of the greatest threats to the endangered whale, which has been designated as such since the Endangered Species Act was passed in 1973.

The vertical-line gear, which stretches from the surface to the ocean floor, is particularly threatening to the right whales, which swim into the traps and become entangled. Lobster fishing accounts for 97% of the vertical lines used on the East Coast, according to the lawsuit.

Kristen Monsell, oceans program litigation director for the Center for Biological Diversity, said right whales have been getting tangled up and killed in lobster gear for too long.

“This decision should send a clear signal that federal officials must take immediate action to protect these amazing animals from suffering more deadly, painful entanglements before it’s too late,” Monsell said in a statement.

Under the Endangered Species Act, there’s a formal consultation process to determine whether a project could threaten the existence of an endangered or threatened species. The process results in a “biological opinion” where it’s determined if there are alternatives to a project’s impact on a species.

An “incidental take statement” regarding actions to minimize impact on an endangered species must be produced for a project to comply with the Endangered Species Act and Marine Mammal Protection Act.

The National Marine Fishing Services’ 2014 biological opinion for the American lobster fishery found it “may adversely affect, but is not likely to jeopardize, the continued existence of North Atlantic right whales.”

The biological opinion found the fishery had the potential to injure or kill an average of 3.25 right whales annually, which was well-above the 0.9 “potential biological removal” the marine mammal stock could withstand – excluding natural mortalities – while being able to reach or maintain its optimum sustainable population.

While the biological opinion acknowledged the lobster fishery’s potential impact on the right whales, it failed to include the “incidental take statement” related to the American lobster fishery, which spans the Eastern Coastline from Maine to North Carolina and rakes in hundreds of millions of dollars and pounds of lobster every year.

Boasberg found that omission plainly violated the Endangered Species Act.

“The [Endangered Species Act] and its regulations require an [incidental take statement] when the taking of an endangered species is anticipated. Take was anticipated here, and [National Marine Fisheries Service] did not produce an [incidental take statement]. The 2014 [biological opinion] therefore violates the [Endangered Species Act],” he wrote.

Boasberg found the National Marine Fisheries Service’s argument the biological opinion “misreads” the Endangered Species Act and Marine Mammal Protection Act doesn’t hold water because “the statutory text itself harmonizes the ESA and MMPA quite clearly by requiring that both be satisfied in the case of marine mammals.”

The agency’s finding the lobster fishery would have more than a “negligible impact” allowed by the MMPA meant the fishery violated the ESA, Boasberg wrote.

A NOAA spokesperson said the agency is reviewing the court’s decision.

Beth Casoni, the executive director of the Massachusetts Lobstermen’s Association, said the association — which intervened in the case in 2018 — is also reviewing the decision and expects to remain involved in the case.

“The Massachusetts Lobstermen’s Association is reviewing carefully the court’s summary judgment ruling on liability. The MLA expects to submit briefing to the court during the remedy phase of this proceeding to protect the rights and livelihood of the lobstermen it represents,” the spokesperson said.

Boasberg indicated he will order briefing from the parties on a potential injunctive remedy.

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