A federal judge refused to ban lobster fishing in a large right whale feeding ground south of Nantucket on Thursday, but warned federal regulators they would meet with considerable disfavor if they fail to meet a new May 2021 deadline to publish a final rule to protect this endangered species from deadly entanglement in lobster fishing gear.

The environmental groups suing the National Marine Fisheries Service said U.S. District Court Judge James Boasberg’s Thursday night ruling is important because it will force the federal government to move quickly to establish more right whale protections in the U.S. lobster industry. The groups claim federal regulators and lobstering states have been stalling.

“This order puts an end to that inaction, demanding that the government implement new protections that will help the right whale come back from the brink of extinction,” said attorney Jane Davenport of Defenders of Wildlife, one of the groups suing on behalf of the whale.

The environmental groups had asked Boasberg to establish a Jan. 31 deadline for a final whale rule, but Boasberg declined after the fisheries service said it didn’t think another four months would pose any additional threat to the whale. While lobstering occurs year round, winter fishing is light and few whales are spotted in New England waters then.

He also declined the environmental groups’ request to close 5,000 square miles of ocean south of Nantucket Island – a right whale feeding ground about the size of Connecticut – to lobster surface-to-seabed buoy lines until the final rule is published, a move that would have effectively made it impossible for the current day lobster fleet to fish there.

In his decision, Boasberg agreed that right whales are on the brink of extinction, and noted that even a single death caused by fishing line entanglement in any given year is unsustainable. But he said a court-ordered closure of such a large fishing area would be unprecedented and, in this case, unjustified.

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 critically endangered whale from extinction and Maine lobstermen trying to protect their way of life.

In April, Boasberg played that card, concluding the fisheries service had violated the Endangered Species Act by failing to fully document the lobster fishery’s harmful impact on right whales.

On Thursday, Boasberg said the agency would have to vacate its 2014 conclusion that lobstering could continue because it knew that right whales were dying at more than three times the rate sustainable for a species that had dwindled to no more than 400. But he delayed the vacate order until May 31, adding extra bite to his deadline for a final rule.

In his April ruling, Boasberg 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 this fall 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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