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Federal judge gives NOAA time to craft new whale rules



ELLSWORTH — A federal district court judge, in a decision issued on Aug. 19, gave the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS) nine more months to craft new rules to protect endangered right whales from entanglement in lobster fishing gear.

Judge James E. Boasberg also denied a request by conservation organizations for an immediate ban on lobster fishing in a vast area of the ocean south of Nantucket Island in Massachusetts.

In April, Boasberg ruled that NMFS violated the federal Endangered Species Act in 2014 when it adopted new rules governing the lobster fishery by failing to adequately consider the risk that endangered right whales could be seriously injured or killed if they become entangled in the vertical end lines that connect lobster traps on the sea floor to marker buoys on the surface. The judge vacated the NMFS “biological opinion” required by the Endangered Species Act, which supported continuation of the lobster fishery. Two weeks ago, the court heard arguments on what should be done to remedy the situation.

The conservation organizations that originally filed the lawsuit in 2018 asked the court to give NMFS a Jan. 31 deadline to adopt a new biological opinion and to order an immediate end to lobster fishing in a vast area of southern New England waters. NMFS and several intervenors representing various segments of the lobster industry in Maine and Massachusetts asked for the court to delay its order vacating the biological opinion until May 31, 2021.

On Aug. 19, Boasberg denied the request for an injunction ending lobster fishing south of Nantucket. He gave NMFS and the lobster industry representatives just over nine more months to come up with an acceptable plan to continue lobster fishing while providing the necessary protection to the endangered right whales. Scientists estimate that the population of North Atlantic right whales is approximately 400 animals.

“I’m pleased that Judge Boasberg has ruled that these important management decisions should remain with the National Marine Fisheries Service,” Department of Marine Resources Commissioner Patrick Keliher said Thursday afternoon. “This ruling will provide the time necessary to ensure protections for right whales and the continued viability of Maine’s critically important lobster industry.”

Denying the injunction, the court said that Congress had given the responsibility for fisheries management to NMFS, not the courts, and “(W)ith that process close to fruition, it would not be in the public interest for the Court to unilaterally invent significant right-whale protective measures.”

NMFS and the lobster interests, represented by the Maine Lobstermen’s Association, the Maine Lobstering Union and the Department of Marine Resources, among others, won’t be operating in the dark. Boasberg ordered NMFS and the lobster industry representatives to file status reports “updating the Court on their progress toward new rules and a new BiOp (Biological Opinion)” every 60 days, starting on Sept. 30.

“We are thrilled that the court will not shut down the lobster fishery or agree to an unprecedented request to designate a massive new closure area unsupported by science and unvetted by the stakeholder process,” Patrice McCaron, executive director of the Maine Lobstermen’s Association, said in a statement Thursday afternoon.

Stephen Rappaport

Stephen Rappaport

Waterfront Editor at The Ellsworth American
Stephen Rappaport has lived in Maine for nearly 30 years. A lifelong sailor, he spends as much time as possible messing about in boats. [email protected]

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