ELLSWORTH — The Department of Marine Resources held its first “virtual” zone council meeting last Thursday afternoon and Commissioner Patrick Keliher had an unanticipated and unsettling piece of news for the Zone C and Zone D lobstermen who phoned in to the conference call or tuned in to the live event on their computers.
Keliher told the roughly 70 participants that on Thursday morning the Pew Charitable Trusts submitted a petition for rulemaking to U.S. Secretary of Commerce Wilbur Ross asking him to take immediate action “to protect North Atlantic right whales from entanglement in federal waters off of New England.”
In its letter to Ross, Pew suggested that the Secretary immediately impose seasonal fishing closures in four areas off the New England coast where, the conservation group said, the vertical lines used in the lobster and Jonah crab trap fisheries create a high risk of entanglement when endangered right whales are present.
The letter specifically called on Ross to designate a year-round ban on trap gear that uses vertical lines in the waters south of Martha’s Vineyard and Nantucket, and three seasonal offshore closures in the Gulf of Maine.
The petition for emergency action calls for the closure of a large area southeast of Deer Isle and the mouth of Penobscot Bay from August through October, the height of the lobster fishing season in most years. The petition also calls for a closure from May through July of an area around Jeffreys Ledge east of the Maine-New Hampshire border and for the closure from October through May of a huge offshore area which Pew describes as an “offshore migration corridor” for whales.
According to Pew, the regulations establishing the requested closures are “necessary and required by the mandates and authorities” of the (federal) Administrative Procedure Act, the Marine Mammal Protection Act, the Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act.
The petition does not call for a total ban on fishing. Rather, it asks Ross to prohibit in the closures the use of the vertical lines that connect traps on the sea floor to buoys on surface.
“The political pressure from the environmental community is incredibly significant,” said Keliher.
“They’re pushing for ropeless fishing,” he said, while describing the Pew petition as “a bit of a curveball” that could threaten “other efforts” by the National Marine Fisheries Service. NMFS is currently working on a very short timeline to develop a response to the orders of federal judge James Boasberg in a critical whale protection case in the U.S. District Court in Washington, D.C.
In its letter to Ross, Pew said the closures it was suggesting were “designed to afford the greatest protections for right whales, while minimizing the impact on fishermen,” but the proposed closures would likely have an enormous impact on the Maine lobster industry.
The “Downeast Summer Closure” from Aug. 1 through Oct. 31 encompasses, among others, the waters surrounding Mount Desert Rock, including both federal and state waters surrounding the 3.5-acre island and the area known as the Inner and Outer Schoodic Ridges. The inner edge of the closed area would be located roughly a dozen miles or more from the coast.
Dozens of boats from ports stretching from Stonington and Isle au Haut in the west to Jonesport and Beals Island or even Cutler in the east fish in the area covered by the “summer” closure.
The “Western Gulf of Maine Closure” between May 1 and July 31 encompasses an area in which, Pew said, research shows an increasing abundance of the Calanus zooplankton that is the primary food source for endangered whales.
The area includes the waters around Jeffrey’s Ledge, a prolific fishing ground some 20 or 25 miles off the coast of New Hampshire and stretching more than 60 miles in a north-northeast to south-southwest direction. The area is roughly three to six miles wide with a maximum width of about 12 miles, and comes as close as five miles of Cape Ann, Mass.
The third closure, the “Offshore Migration Closure” between Oct. 1 and April 30, would encompass the northern section of federal Lobster Management Area 3. According to Pew, these waters form a “migratory corridor” for right whales in fall and spring as they move from their feeding grounds off Cape Cod to feeding grounds off eastern Canada and in the Gulf of St. Lawrence.
The closure extends for about 150 miles and includes productive offshore fishing grounds in the central Gulf of Maine, including Cashes Ledge and Outer Falls.
The Pew petition comes at a time when fishermen are dealing with several lawsuits aimed, as Keliher said last week, at forcing the use of ropeless gear on the lobster and crab fisheries. Until the petition was filed last Thursday morning, Keliher had planned to talk about those lawsuits and the potential problems with the market for lobsters as the weather improves, landings potentially increasing and the effects of the COVID-19 pandemic and ongoing trade disputes with China and the European Union.
In litigation pending in the federal district court in Massachusetts, a judge has given the state’s fisheries regulators a period of 90 days, which runs out this summer, to get an “incidental take” permit from NMFS that says that a lobster fishery using vertical lines doesn’t substantially endanger right whales. Without that permit, Massachusetts lobstermen will not be allowed to fish using vertical lines in state waters.
“That’s a very short period of time,” Keliher said. Usually processing a request for a permit takes several months to a year.
Last year, activist Richard “Max” Strahan filed suit in the U.S. District Court in Maine seeking to force DMR to stop issuing lobster licenses that allow the use of vertical lines. Judge Lance Walker has allowed the suit to continue, but he did not grant Strahan’s initial request for a preliminary injunction to stop the fishery.
Keliher said that Strahan filed the same brief in the Maine case that persuaded the judge in Massachusetts to rule against the state but that there were key differences between the two suits.
In the Maine case, Keliher said, there is “no direct evidence” of right whales becoming entangled in state-licensed fishing gear. What’s more, he said, a “redistribution” of the whales’ primary food source has moved right whales out of Maine waters. Perhaps most important, “a different judge” is hearing the Maine case.
In the Washington, D.C., case, an April ruling by judge James Boasberg held that NMFS violated the federal Administrative Procedure Act and the Environmental Protection Act in 2014 when it issued a required biological opinion without the necessary incidental take findings. Still to be determined is what remedy the court will order.
NMFS is currently working on a new biological opinion has the court is considering a stay on any action until next January to allow the agency to complete that and new rules that will sufficiently protect endangered whales. According to Keliher, the “good news” is that the immediate focus of the plaintiff conservation groups seems to be a requirement for ropeless fishing south of Nantucket that will have “no impact on the Maine lobster industry.”
DMR plans to file a brief in the case sometime this week. The Maine Lobstermen’s Association and the Maine Lobster Union may also file briefs. The Conservation Law Foundation and other plaintiffs will have until July 10 to file there replies. After that, it will be up to the court.
DMR held a virtual council meeting for zones A and B on Monday afternoon. Other virtual meetings are scheduled for later this month for zones E, F and G.
Correction: An earlier version of this article in the headline and caption misstated the name of the organization that filed the petition. It is the Pew Charitable Trusts.