The right whale protection lawsuit winding its way through the federal courts for two years has often been called the “wild card” in the battle between environmental groups trying to save the whale from extinction and lobstermen trying to protect their way of life.

Last week, a federal judge played that card, concluding the National Marine Fisheries Service had violated the Endangered Species Act by failing to fully document the U.S. lobster fishery’s harmful impact on right whales. The play leaves state and industry officials scrambling to figure out their next move.

“It’s hard to predict how lawsuits will impact future whale rules,” Maine Department of Marine Resources Commissioner Pat Keliher wrote to fishermen on Friday. “Many of you have called or emailed asking about the timing and impacts of this decision. At this time they are still unknown, but may come very quickly.”

The agency is reviewing last week’s ruling to determine what it may mean for Maine’s $485-million-a year lobster industry and what its next steps should be, Keliher said. For now, the Maine fishery remains open to those willing to brave rough offshore waters and pandemic-gutted markets.

Keliher asked for patience from the industry, as difficult as it might be at this time.

“It pains me to have to send you this message while you’re dealing with the stress and challenges of Covid-19 and its impacts on you, your family, your crews, and your livelihood,” Keliher wrote in an email sent out to all commercial lobstermen. “I know this could not have come at a worse time.”


The Maine Lobstermen’s Association said the court case poses a “daunting challenge” to the lobster fishery, but notes that last week’s ruling was just the conclusion of the first part of what has turned into a two-part judicial proceeding, according to the association’s director, Patrice McCarron.

In the first phase, the court had to decide if the National Marine Fisheries Service violated the Endangered Species Act in 2014 when it granted the lobster fishery permission to operate. Now the case moves into its second phase, when the judge will consider new whale protections needed so the fishery complies with federal law.

This is when the lobstermen’s association, which became a party to the case in 2018, gets to educate the court, McCarron said.

“They have not yet heard from the fishing industry’s perspective,” McCarron said. “Now that it is time for the judge to consider evidence about what happens on the water to protect whales, the MLA will bring the voice of Maine’s lobstermen to the court.”

In his ruling, Boasberg concluded the fisheries service violated the Endangered Species Act by not fully reporting the lobster industry’s harmful impacts on the right whale, which it knew to be more than three times what the dwindling species that now numbers only about 400 could sustain.

He accused the service of failing to follow the letter of the landmark environmental law because it would have meant the U.S. fishery, which rakes in millions of dollars each year, would not be able to proceed. The agency says federal lawmakers did not intend for regulators to use the law to close fisheries.

The fisheries service is set to issue a draft regulation in July outlining new right whale protections that U.S. lobstermen must adopt, which could range from seasonal area closures like the one enacted in 2014 in Cape Cod Bay, to a mix of trap reductions and more traps per buoy line as recommended by a right whale task force.

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