ELLSWORTH — The conservation groups that filed a federal lawsuit two years ago to force the National Oceanic and Atmospheric Administration to do more to protect endangered right whales from entanglement with fishing gear have asked U.S. District Court Judge James E. Boasberg to ban lobster fishing gear with vertical buoy lines off the coast of Massachusetts.
The affected area would be south of the islands of Martha’s Vineyard and Nantucket.
According to the Center for Biological Diversity and several other plaintiff conservation groups, the area “has increasingly become important right whale foraging and socializing habitat in recent years.”
The conservation groups filed their request last Friday, three weeks after the judge ruled that the National Marine Fisheries Service (NMFS) violated the federal Endangered Species Act when it continued to allow lobster fishing with gear that used fixed vertical buoy lines in which whales could become entangled.
As a practical matter, a ban on the vertical lines that connect traps on the sea floor to marker buoys on the surface would amount to a total prohibition against lobster fishing in the area south of the two Massachusetts islands.
While scientists at the Woods Hole Oceanographic Institution and a few others have experimented with “ropeless” lobster trap gear and proposed designs using submerged buoys that pop to the surface on an audio or electronic signal, to date no such gear is currently available in commercial quantities.
What’s more, lobstermen say that the systems under development are prohibitively expensive to begin with and that faulty gear could lead to the further expense of lost gear. It would also, fishermen say, be extremely difficult to avoid entanglements with other’s gear invisible on the ocean floor.
Unaddressed is the contention of the Maine lobster industry that there is no evidence that right whales become entangled in Maine lobster gear.
At the heart of the conservation groups’ original complaint was that NMFS violated the law in 2014 when it issued what is known as an “incidental take statement” in its biological opinion required by the ESA after the service found that the lobster fishery had serious potential to harm North Atlantic right whales at an unsustainable rate.
The federal judge agreed and, last month, granted the plaintiffs summary judgment on their claims against NMFS without requiring a trial. In his order, he asked the plaintiff conservation groups to propose a remedy for that violation.
In addition to the injunction, the Center for Biological Diversity and other plaintiffs asked the court to throw out the 2014 biological opinion but to issue a “short” stay of that order to give NMFS and both the Maine and Massachusetts lobstermen’s associations an opportunity to reach some agreement with the plaintiffs over how the lobster fishery should be managed “while limiting potential disruptive consequences.”
Instead of throwing the 2014 biological opinion out completely, the plaintiffs suggested the court send that opinion back to NMFS to be rewritten, presumably with provisions that consider the harm the lobster fishery poses to the whales. The deadline for NMFS to issue the new biological opinion would be next Jan. 31. The injunction against lobster fishing south of Nantucket and Martha’s Vineyard would stay in place pending a new biological opinion that addressed the plaintiffs’ concerns.
Nothing is likely to happen with the injunction until well into the start of the fishing season.
NMFS and the other federal defendants, including Secretary of Commerce Wilbur Ross, have until June 15 to file their response to the plaintiffs’ proposals. The Maine Lobstermen’s Association and the Massachusetts Lobstermen’s Association have until June 18 to file their responses, and the state of Maine has until June 22.
Once all of those responses are filed, the plaintiffs will have until July 10 to respond. Presumably the court will act sometime after that date.
According to several news reports, New Hampshire-based whale protection activist Richard Max Strahan has recently filed a lawsuit in the U.S. District Court in Bangor seeking to ban lobster fishing in Maine. Strahan, sometimes referred to as the “Prince of Whales,” has previously filed or participated in federal lawsuits aimed at shutting down the lobster fishery off the coast of Massachusetts to protect right whales against entanglement in fishing gear.
A search of the Maine federal district court’s electronic filing system did not locate any filing by Strahan as of late Monday morning.