A North Atlantic right whale feeds on the surface of Cape Cod Bay off the coast of Plymouth, Massachusetts, in 2018. AP Photo/Michael Dwyer

A federal court ruled Friday that federal regulators violated both the Endangered Species Act and the Marine Mammal Protection Act with new regulations that failed to adequately reduce the lobster fishery’s threat to the North Atlantic right whale. 

The ruling is the culmination of more than four years of litigation, and it represents a huge win for environmental groups fighting to protect the critically endangered whale. 

In his 43-page ruling, U.S. District Judge James Boasberg placed blame for the rapidly dwindling number of whales at the feet of the lobster industry. 

“For centuries, these whales were imperiled by excessive hunting, but today the greatest human-caused threat comes from entanglement in fishing gear,” he wrote. “ Much of that gear is dropped into the ocean by crews fishing for lobster.”

The North Atlantic right whale population sank to 336 in 2020, a nearly 20-year low.

The Center for Biological Diversity, the Conservation Law Foundation and Defenders of Wildlife sued the National Oceanic and Atmospheric Administration in early 2018 for failing to prevent the whales from getting tangled and killed in lobster gear.


In April 2020, the groups won a ruling that a prior biological opinion on the lobster fishery by NOAA’s National Marine Fisheries Service violated the Endangered Species Act.

The biological opinion assesses whether federal action is likely to jeopardize the continued existence of a species or result in the destruction of critical habitat. At the time, Boasberg gave the agency until May 31, 2021, to finalize a new biological opinion.

The new biological opinion, issued May 27, 2021, forms the basis for a plan to almost eliminate the whales’ mortality risk from fishing activity by 2030. The final rule, released Aug. 31, 2021, is the first of four phases outlined in the biological opinion, and it imposes a series of controversial new regulations on the lobster industry that are designed to eliminate the risk to the whales by 60 percent. With the additional three phases, the regulators estimate a 98 percent risk reduction.

But the environmental groups say the biological opinion and the final rule don’t go far enough, despite pushback from the lobster industry.

The groups amended their lawsuit in September to add claims alleging that the agency’s new rule also violated the Marine Mammal Protection Act by failing to reduce the risk to the low levels required by the statute within six months.


The filing also argued that the biological opinion failed to comply with the Endangered Species Act because it contained an “incidental take statement” that authorized zero lethal takes despite anticipating more than three such takes a year.

This, Boasberg said, is “the crux of the problem.”

“The 2021 BiOp projects that in the coming years the American lobster fishery will continue to potentially kill and seriously injure North Atlantic right whales at over three times the sustainable rate,” he said, and this is expected to occur even after the implementation of the 2021 final rule.

Virginia Olsen, a lobster harvester and director of the Maine Lobstering Union, agreed with Boasberg that the biological opinion’s projection is “the crux of the problem,” but not because of anything the Maine lobster fishery has done.

The Maine Lobstering Union and the Maine Lobstermen’s Association have argued for months that the federal officials used faulty science when drafting the biological opinion and the final rule.

The lobstermen’s association is in the midst of its own legal battle with the fisheries service, also surrounding the biological opinion.


In its lawsuit, the Maine Lobstermen’s Association argues that the service acted arbitrarily by failing to rely on the best available scientific information and by failing to account for the positive impact of conversation measures already adopted by the Maine lobster fishery. That case is pending.

“Until NOAA and NMFS stop relying on arbitrary assumptions and apportionments and start paying attention to the best scientific data available, which reveals that Canadian fisheries are the source of almost all known causes of entanglements, then both the North Atlantic right whale and the American lobster fishery will go extinct,” Olsen said in a statement. 


Friday’s ruling was the “course correction” the agency needed to put the whales and the fishery on a path toward sustainability and co-existence, said Jane Davenport, senior attorney at Defenders of Wildlife. 

“The court’s decision recognizes what NOAA Fisheries has ignored for decades – that Congress clearly intended to protect right whales from the lobster gear entanglements that are driving the species toward extinction just as surely as whaling nearly did,” she said.


Environmental groups celebrated the “huge victory” Friday. 

Kristen Monsell, oceans legal director at the Center for Biological Diversity, said that while the ruling was a “huge victory” in the fight to save the whales from extinction, the Biden administration needs to work harder to help prevent what she said are “agonizing,” deadly entanglements.

“Lobster gear is a deadly threat to right whales, and the courts are telling the federal government to quit stalling and start taking real action,” she said. 

The failure to act has caused the whales to “slip toward extinction,” said Erica Fuller, senior attorney at the Conservation Law Foundation.

“We must all commit to taking and funding every step necessary because even one right whale death is too many,” she said.



With his ruling, Boasberg invalidated the 2021 biological opinion and the 2021 final rule.

“No actor here – neither the court nor the service – operates free from the strict requirements imposed by the (Marine Mammal Protection Act) and (Endangered Species Act),” he said. 

Technically, without a valid biological opinion, the fisheries’ service can’t authorize lobstering in federal waters, where larger operations tend to fish.

However, Boasberg clarified that he is not immediately shuttering the lobster fishery. 

“Indeed (the court) is cognizant of what a weighty blow that would inflict,” he wrote.

Instead, he ordered the parties to propose remedies rather than impose his own fishing restrictions.


The Maine Lobstermen’s Association said in a statement that it will not allow the industry to go down without a fight.

It called Friday’s ruling a “mixed bag.”

The court may have invalidated the final rule and the biological opinion, but it did not shut down the fishery or decide on a remedy.

“We are still reviewing the court’s opinion with our lawyers, but we are heartened that the court recognizes the great importance of Maine’s lobstering heritage, and appreciates the potential and unnecessary hardship that could be imposed on the men and women who work so hard to make our industry thrive,” said Patrice McCarron, executive director of the association.

The parties must submit a proposed briefing schedule for the remedies by July 20. There will be a status hearing July 22.

The Maine Department of Marine Resources could not be reached for comment Friday evening.

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