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Federal judge says regulators failed to keep whales safe from lobster gear

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Kathryn: A federal judge has ruled that the National Marine Fisheries Service, which is in charge of protecting North Atlantic right whales, failed to do so. The agency's rules and regulations — meant to reduce entanglements in lobster fishing gear — were insufficient, the judge found. It’s another milestone in a long fight to save both a critically endangered species and a fishing industry that’s becoming increasingly endangered, itself. CAI’s Eve Zuckoff is here to unpack it all with us. Hi, Eve.

Eve: Hi, Kathryn.

Kathryn: So walk me through what led to this ruling.

Eve: Well, after almost five years of litigation, a federal court ruled that the National Marine Fisheries Service has been issuing rules to regulate the lobster fishery, but those rules don’t do nearly enough to protect the critically endangered right whale. 

Basically, the judge said, federal regulators are supposed to keep whales safe, but the federal government failed to do that when it enacted contradictory rules. He also said the agency violated the Endangered Species Act and Marine Mammal Protection Act.

Kathryn: Can you give me an example of these “contradictory” rules?

Eve: Yeah. For example, federal regulators at one point said they won’t tolerate any right whale deaths, but elsewhere they wrote that as many as three whales could be killed per year based on the policies in place right now.

So I talked to lawyer Erica Fuller with the Conservation Law Foundation — that’s one of the three conservation groups that brought the suit. She said the 336 right whales left on the planet are facing extinction, and the judge’s decision reflects the dire nature of the situation.

"This decision makes it patently obvious that the federal government has to do a lot more and a lot faster than it was intending to do," Fuller said.

Kathryn: So it sounds like the plaintiffs are satisfied with this ruling. What does this ruling mean for the lobster fishery?

Eve: Nothing immediately. For now, the judge, James E. Boasberg, is only saying regulators’ rules are unlawful — not how they should be changed. Lawyers on both sides tell me that should come after all the parties meet and offer him potential solutions over the next year.

The judge is using some restraint here because, he writes, lobstermen already have to abide by a long list of federal and state regulations,  and the lobster industry is an important economic driver in Massachusetts and Maine.

But the potential for the entire lobster fishery to be shut down is very real.  He said he doesn’t need to “immediately” shutter it, but, technically speaking, he could. And that, alone, could push the feds to clean up their policies.

Kathryn: So how has the federal government and fishing industry reacted to this?

Eve: Well, the Massachusetts Lobstermen’s Association says it’s “disappointed” with the ruling in a statement, and added that it's "greatly concerned" this could invite more lawsuits.

I talked with lobster association president, Arthur "Sooky" Sawyer, right before this news came out, and he said Massachusetts has some of the tightest regulations and the most surveillance in the country.

"Three months of the whole spring ... the whole coast of Massachusetts is closed. And if you look at the reality of sightings, most of the people looking for them are here in Massachusetts. They don’t really have a lot of people actively looking for whale entanglements in other states," Sawyer said.

Federal regulators said they’re reviewing the decision, and will continue trying to conserve and rebuild the right whale population.

Kathryn: Finally, Eve, just weeks before this decision came out, the National Marine Fisheries Service actually put out its annual report on whale entanglements. So before I let you go, just briefly tell us, what's the main takeaway?  

Eve: So the report goes over data from 2020. There were four confirmed cases of entangled North Atlantic right whales. That’s one fewer than the year before. And four sounds small, until you remember the total population is estimated at 336 and falling.

Another thing to consider is that there weren’t as many whale watch boats, or scientific surveys out in 2020 because of COVID, so it’s more than likely that there were entanglements that no one saw.

Ultimately, it’s just one more piece of evidence in this complicated story that shows you the tenuous situation for both the right whale species and the fishing industry.

Kathryn: CAI’s Eve Zuckoff, thanks so much for your reporting. Appreciate it.

Eve: Thanks, Kathryn.

Eve Zuckoff covers the environment and human impacts of climate change for CAI.
Kathryn Eident is an award-winning journalist and hosts WCAI's Morning Edition. She began producing stories for WCAI in 2008 as a Boston University graduate student reporting from the Statehouse. Since then, Kathryn’s work has appeared in the Boston Globe, Cape Cod Times, Studio 360, Scientific American, and Cape and Plymouth Business Magazine.