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In dispute over lobster fishing regulations, judge sides with the whales

A federal judge declined to second-guess the data the National Marine Fisheries Service used in 2021 to form a biological opinion describing New England’s lobster industry’s effect on the endangered North Atlantic right whale.

(CN) — Despite not having clear answers to questions such as where in the ocean are North Atlantic right whales most likely to become entangled in fishing gear, federal regulators did not act arbitrarily when creating a 2021 biological opinion for the endangered species, a federal judge ruled.

On Thursday, a federal judge in the District of Columbia ruled against several lobstermen’s organizations and the Maine Department of Marine Resources who tried to argue the National Marine Fisheries Service exaggerated the risks the lobster industry posed to the whales.

Noting the issue has pitted the approximately 336 right whales left alive against the “livelihoods and traditions” of the lobstermen who populate the harbors and bays of New England, U.S. District Judge James Boasberg said the agency rationally used what little data it had to create the biological opinion, which then informed it as the agency crafted fishing regulations.

“Indeed, as circumstances change and new data become available, the agency can and must continually update its assessments,” Boasberg wrote. “At this juncture, however, the Court is satisfied that NMFS suitably considered the data available at the time of its action and reasonably explained its scientific conclusions.”

Once the prized quarry of the area’s whaling industry, the North Atlantic right whale’s greatest threat is humankind: colliding with ships or tangling with fishing line that can lead to infection or drowning.

Federal regulators estimated about 1.24 million buoy lines stretch down through the water from Maine to Rhode Island and a study found 85% of right whales have had a run-in with rope at least once in their lives.

In one portion of its biological opinion, National Marine Fisheries Service estimated about half of those entanglements occurred in U.S. waters with the rest coming from Canada.

The lobsterman industry argued the agency’s numbers were off because a changing climate is pushing the right whales further north. Furthermore, it said that of the incidents that involved whale death or serious injury between 2010 and 2018, researchers were able to trace 7.75 incidents to Canadian fishing gear and two to American gear. The rest — 38.75 incidents — could not be pinned down to a particular region.

But Boasberg said it was unclear how much time the whales spent in American and Canadian waters.

“While noting that heavier Canadian gear used for fishing snow crabs is more lethal than American buoy lines used for lobstering, NMFS nonetheless concluded that the large number of buoy lines in U.S. waters, combined with substantial uncertainty on the effects of the countries’ mitigation measures, suggested a 50/50 split,” Boasberg wrote.

When researchers are able to observe entangled or dead whales, the weathered gear that can be recovered often gives scant clues as to where the whale was first entangled. While the National Oceanic and Atmospheric Administration keep a gear locker of items it has taken from entangled whales, sometimes the best it can do is describe the gear as “unidentified line.”

Maine Governor Janet Mills said Boasberg’s decision was “out of touch with reality” and her administration would discuss next steps with lobster industry groups.

“Maine lobstermen care about the endangered right whale and have undertaken substantial actions to protect them at great personal expense,” Mills' statement said.

The Maine Lobstermen’s Association, one of the groups that challenged the biological opinion, said on Facebook that it has been nearly two decades since a right whale entanglement has been attributed to Maine lobster fishing gear.

“It has become crystal clear that neither [the federal court nor NMFS] grasp the devastating impacts their decisions will have on the Maine lobster industry, our coastal communities, and the State of Maine,” the association said.  

The decision comes months after Boasberg sided with conservation groups who had filed a suit of their own arguing federal regulators disregarded federal laws and did not go far enough to protect right whales from the ropes of the lobster fisheries when crafting their regulations.

Around the same time, the First Circuit allowed a seasonal closure of a strip of ocean off the coast of Maine to the use of buoy lines to remain in place as lobster industry groups challenge it the regulation in court.

Responding to Thursday’s ruling, attorneys for the conservation groups involved with the litigation — Defenders of Wildlife, Conservation Law Foundation and the Center for Biological Diversity — said in a statement for years federal regulators did too little as right whale numbers dwindled.

Defenders of Wildlife senior attorney Jane Davenport said “for years the agency has deferred to the lobster industry’s demands for weaker fishing regulations. The Fisheries Service now needs to follow its own science and protect the right whale before the clock runs out on this iconic species’ survival.”

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