In this 2018 file photo, a North Atlantic right whale feeds on the surface of Cape Cod Bay off the coast of Plymouth, Mass. Authors of a new scientific study published in January 2022 say greater reliance on genetic testing of baby whales and their mothers may help save the rare species from extinction. AP Photo/Michael Dwyer, File

Parties in a lobster industry lawsuit filed against federal regulators are urging a judge to make a decision in the case because its outcome affects a parallel case that the parties have to act on.

The federal judge considering this decision was the same who ruled last month that new regulations to protect endangered right whales do not go far enough, and violate both the Endangered Species Act and Marine Mammal Protection Act. In that case, U.S. District Judge James Boasberg asked the parties to propose remedies.

The lobster association’s case takes aim at newly enacted and proposed federal regulations to protect the whales, which the association says are invalid because they are based on flawed assumptions and calculations.

The National Marine Fisheries Service, the federal defendants – as well as intervenors the Maine Department of Marine Resources, the Maine Lobstering Union and the Massachusetts Lobstermen’s Association – all filed briefs this week asking Boasberg not to stay a decision on a lawsuit brought by the Maine Lobstermen’s Association. The parties need to know the court’s opinion so they can develop proposed remedies that Boasberg ordered in the parallel lawsuit brought by conservation groups.


Both cases challenge the validity of the “biological opinion,” issued by the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service on the impact of the American lobster fishery on the North Atlantic right whale population. A biological opinion is required to authorize the operation of a fishery in federal waters.


The Center for Biological Diversity and other environmental groups sued NOAA in 2018, arguing that its biological opinion was invalid because it did not include an “incidental take statement,” a requirement of the Endangered Species Act, about whale injuries and deaths expected from entanglements in fishing gear. The court ruled in 2020 in the environmental groups’ favor, but let the biological opinion stand, giving NOAA time to develop a new one.

The new biological opinion was published in May 2021 with a determination that the lobster fishery poses “no jeopardy” to the right whale population. NOAA also established the “potential biological removal” level of right whales – how many whales could be seriously injured or killed without driving the population to unsustainable levels. It determined this number was 0.7 whales per year.

The opinion and potential biological removal calculation form the basis of a four-phase conservation plan with a goal of reducing the whales’ risk of serious injury and mortality by an estimated 98 percent by 2030, to 0.36 deaths per year. The first phase was released in August 2021. It changed regulations on lobster fishing gear to reduce the number of vertical lines in the water and weaken the ropes so entangled whales can break free.

The plaintiffs in the case, referred to as the CBD case, amended their complaint in 2021, charging that the new biological opinion is also invalid and that the new conservation rules fail to reduce the risk to whales fast enough.

Boasberg ruled July 8 in favor of the environmental groups because the biological opinion authorizes an incidental take of zero while the conservation plan indicates a higher number would be killed each year; and because the Marine Mammal Protection Act requires that the risk be reduced to below the potential biological removal level of 0.7 whales per year within six months. Rather than ordering a remedy, Boasberg asked the parties to submit briefs proposing remedies in a schedule that ends in October.



In the parallel case before Judge Boasberg, the Maine Lobstermen’s Association also sued NOAA’s National Marine Fisheries Service in September 2021, arguing the agency did not use the best available science in developing its latest biological opinion, and used faulty assumptions in its calculations. The industry raised many issues, including that the agency overestimated the impact of the lobster fishery on right whale deaths; used worst-case-scenario modeling of ocean conditions; and improperly split the right whale deaths that could not be attributed to a country 50/50 between Canada and the U.S. despite the majority of attributed whale deaths occurring in Canada.

In a status hearing July 22, Boasberg ordered the parties to weigh in on whether the lobstermen’s association case should be stayed until a decision on a remedy is made in the CBD case. The National Marine Fisheries Service and several intervenors submitted briefs this week urging Boasberg not to go that route.

The fisheries service argued a stay would deprive it of needed clarity to determine what remedy it would propose in the CBD case, because it would have to craft its proposed remedy without knowing whether the court will find its May 2021 biological opinion or the August 2021 rules unlawful for any reasons the lobstermen’s association suggests.

“If the Court were ultimately to find that NMFS’s decisions were not only under-protective of right whales (as the Court held in CBD), but also used overprotective assumptions as (MLA) allege(s), NMFS would have to understand the data and assumptions that the Court would base its decision upon, then conduct additional analysis or fundamentally rework methodologies that the agency took years to create and refine,” the fisheries service wrote.

The Maine Department of Marine Resources argued that if a decision is not made in this case, then the only remedies the court would be expected to consider in the CBD case would be as or more restrictive than the regulations already imposed on the lobster industry. The Marine resources department argued that NMFS has overstated the risk the lobster fishery poses to right whales based on predictions generated by a model that incorporates flawed assumptions; as a result, it is overregulating the fishery.

The DMR, the Massachusetts Lobstermen’s Association and others argued that a stay could lead to further litigation. Without a ruling in the Maine Lobstermen’s Association’s favor, DMR asserts, the National Marine Fisheries Service would likely continue issuing rules based on the same flawed math, meaning the department would have to spend more resources seeking judicial review of those rules. The Massachusetts Lobstermen’s Association argued that without a decision there could be more litigation challenging the biological opinion after a viable remedy is reached in the CBD case, subjecting lobstering families to more years of uncertainty.


The National Marine Fisheries Service wrote that delaying a decision on a remedy in the CBD case until a decision has been made in the MLA case would not harm the environmental groups or right whales, because the best data available shows that operating the federal lobster fishery according to the conservation plan, “is not jeopardizing the right whale.”

“While the population level has declined in recent years, the species has rebounded from significantly lower levels in the past,” the NMFS wrote. “Taking the limited amount of time needed to issue a decision in this case prior to determining an appropriate remedy in the CBD case will not prejudice (environmental groups) and will provide all parties the clarity they need to move ahead.”

There is another concern in these lawsuits. While the National Marine Fisheries Service’s conservation plan is based on Endangered Species Act requirements to bring whale deaths to or below the Potential Biological Removal level, language in the Marine Mammal Protection Act requires a “negligible impact” determination, which could be significantly lower than the potential biological removal level, said Chip Lynch, an attorney at NOAA’s Office of General Counsel, at an Atlantic Marine Fisheries Council meeting on Aug. 2. The conflict between the Endangered Species Act and the Marine Mammal Protection Act thus needs to be clarified by the court.

“We believe that the potential to reach PBR is there to continue this fishery,” said DMR Commissioner Pat Keliher, a member of the ASMFC lobster management board. “We don’t believe this fishery will be able to continue if we have to reach a negligible impact. … I just want to make sure that this board is clearly understanding the seriousness this fishery faces, a billion dollar industry on the East Coast, the most valuable single fishery in this country, closed because of this tie between the Endangered Species Act and the Marine Mammal Protection Act. This has been my nightmare, and it’s moving in that direction.”


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