Conservationists seek emergency intervention to save Right Whales, remove fishing rope entanglements

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BASS HARBOR, Dec. 3, 2020 – The early morning stillness at the dock here last month was disturbed only by the cranking of Cummins and Volvo engines. As the lobster boats headed out, the crews already had prepped for all risks, especially weather. But the gathering storm is not a meteorological one.

By next June the entire Maine fleet of lobstermen could be facing stringent regulations – and potential fisheries closure – similar to that in Canada and Cape Cod. That’s when the federal government is expected to toughen its efforts to protect the critically endangered North Atlantic Right Whale. Conservation groups successfully sued the federal fisheries agency and the lobster industry, and in April a judge ordered stiffer regulations to be developed by May 31, 2021.

But conservationists are not waiting for the court-imposed deadline. This week they petitioned the National Marine Fisheries Service to take emergency action to protect the endangered whales.

They were alarmed by the latest population count of Right Whales and are upping the ante in their battle against the lobster industry. Last month, new scientific data pegged the population count of living Right Whales at 356 – down from more than 400 a year ago. It also showed only about 70 breeding females left. In 10 years, the species has suffered a 25 percent decline.

The Center for Biological Diversity, Conservation Law Foundation and Defenders of Wildlife were among the groups that filed the emergency petition under the Marine Mammal Protection Act and Administrative Procedure Act. 

When the May 31 date was set in August by the federal judge, The Maine Lobstermen’s Association immediately declared victory.

“We are thrilled that the court will not shut down the lobster fishery or agree to an unprecedented request to designate a massive new closure area unsupported by science and unvetted by the stakeholder process. The MLA is so grateful for the tremendous outpouring of support that enabled our legal team to educate the court about the lobster industry’s long-standing and successful efforts to protect right whales and the economic devastation that would result from a shutdown of the fishery,” stated MLA’s executive director, Patrice McCarron.

MLA was trying to bolster a legal defense fund and the stay of the Feb. 1 date to May 31 was certainly a boost.

Maine may yet escape the biggest onslaught of regulatory oversight. The Gulf of Maine has so far not been a hotspot associated with Right Whale migration in the same manner as Cape Cod and the Gulf of St. Lawrence in Canada. Moreover, the federal judge who found NOAA Fishery guilty of not executing the Endangered Specifies Act voiced sympathy for how important the industry was to Maine. The Maine Lobstermen’s Association wrote an excellent summary of his ruling Aug. 19:

https://mainelobstermen.org/wp-content/uploads/2020/08/MLA-Understanding-Judge-Boasberg-August-19-Order_2020.08.20.pdf?x20246

But what is the long-term reality? And does the new population count of Right Whales shift the political equation?

“There is a myth that Maine would like people to believe – that there are no Right Whales in Maine,” said Jane Davenport, chief counsel for the plaintiffs. “Their views are not based in science.”

“The feeding ground for Right Whales keeps shifting,” she said. “It is absolutely passing through Maine waters .. these are tricky, dark animals with no dorsal fins .. they are moving northward and they are hard to spot.”

“There were at least two, and maybe three confirmed accounts of different individual right whales in Maine waters this summer, close enough inshore that within the photographs you can distinguish people’s homes on the shore,” said Sean Todd, marine biologist at the College of the Atlantic. “For a much larger population, seeing one or two whales inshore would not be an issue. But we are now dealing with a population with less than 100 reproductively active females. Every whale counts at this point.

“The decrease in population size is alarming and of great concern … What we need are solutions that can be applied immediately, solutions that fishermen are willing to implement,” Todd added. “Unfortunately the issue has become highly politicized, with too much polarization and misinformation.”

MDI lobstermen scoffed when asked on a Facebook lobstermen’s group whether anyone has tested “ropeless” fishing technology. One wrote that by even asking the question QSJ demonstrated an ignorance about the industry. But the College of the Atlantic in Bar Harbor has been testing such gear to moderate success. Capt. Toby Stephenson, who skippers the college’s research boat Osprey, said of the ropeless gear. “It works. The acoustic release works.”

Marine scientist Zack Klyver, who grew up in Eastport and worked for 30 years as a whale watch naturalist guiding whale tours on the Gulf of Maine, said he is trying to make headway with Maine lobstermen to test ropeless traps but there is a overriding “fear and apprehension.”

“There are things constantly coming at them (lobstermen) .. plus, they have had 10 years of 5 to 10 percent increases in catch and profit … some are making $200,000. It’s a very conservative group and change happens slowly.”

Klyver was aboard the Osprey for 10 days in early fall when they deployed 60 ropeless traps and were able to retrieve all but three. “And two were from human error when we failed to open the tank for air.”

Most ropeless gear requires an acoustic signal to be sent to the trap at the bottom releasing inflatable bladders or other floats to bring the trap or a rope tethered to traps to the surface. “It’s not 100 percent reliable but it works,” said Stephenson. Part of the challenge, though, is that the bottom of the Gulf of Maine tends to be rockier than than other fisheries and the traps will not rest easily on the bottom. On such trap was wedged i n between rocks and could not surface.

But with economies of scale and more research, Todd, Klyver and Stephenson firmly believe that new technologies can be made economically effective.

“All we need is a commitment to research and development—would anyone have thought what we can now do with cell phones possible 15 years ago?” said Todd.

Canada, California and Massachusetts fishermen have been testing ropeless technology ever since their fisheries were closed for long periods as a result of Right Whale migration in their waters.

“Maine lobstermen have been fishing for generations but they adapted to new technologies as they came along. Their fathers and grandfathers used manila rope which rotted and broke. They didn’t have poly steel rope then,” Davenport said.

But Maine’s obstinacy has given Canada and Cape Cod a head start on research and development. Woods Hole Oceanographic Institution recently received a $900,000 grant from Seaworld Busch Gardens Conservation Fund to create a gear library where fishermen could borrow ropeless traps to test. The number of testers in Canada is approaching 1,000.

The Cape Cod Times published an excellent summary of the current testing of ropeless technology a month ago … https://www.capecodtimes.com/story/news/2020/11/01/ropeless-gear-could-help-right-whales-and-fishermen/6101826002/

By May 31, the federal agency also known as NOAA Fisheries must submit new regulations for the fishing of lobsters off the Maine coast and other jurisdictions for public review and comment. It also must consider the environmental impact of such proposed regulations. That’s a lot of work by May 31, and so far they haven’t released even the most rudimentary plan.

This is not good news for Maine Lobstermen.

“Four out of every five North Atlantic right whales has suffered from entanglement at least once,” said Davenport. “Yet the government refuses to act as an entire species teeters on the brink of extinction. We must give these whales some breathing room in the areas where they feed and mate, oblivious to the dense maze of entangling fishing lines surrounding them.” 

Entanglements are the leading cause of skyrocketing rates of right whale deaths and serious injuries and are also preventing them from reproducing, pushing calving rates to historic lows, Davenport claimed. 

“North Atlantic right whales are in crisis, and these critically endangered animals need protection from deadly entanglements now,” said Kristen Monsell, oceans legal director at the Center for Biological Diversity. “Federal officials need to immediately prohibit the use of vertical fishing lines in the whales’ important habitat areas.”

The petition for emergency action filed this week could be a political tactic to gain more awarenness with the federal enforcers and the judge who extended the deadline to May 31.

The petition asks the National Marine Fisheries Service to find that entanglements in the vertical buoy lines used in commercial fisheries are having an immediate and significant adverse impact on right whales and to issue emergency regulations to address that impact. This includes closing waters off Southern New England to trap/pot and gillnet gear. 

How did the federal government get slapped with a guilty finding of non-compliance with the Endangered Species Act? Perhaps it’s because the entire Maine Congressional delegation has been lobbying the Feds to back off what it calls unfair treatment of Maine’s lobster industry.

In a continuation of their strong, bipartisan advocacy for fair treatment of Maine’s lobster industry, U.S. Senators Susan Collins and Angus King and Representatives Chellie Pingree and Jared Golden sent a letter to Commerce Secretary Wilbur Ross, urging him to take action to protect Maine’s lobster industry from unfairly burdensome regulations as the U.S. seeks to protect the right whale population,” the delegation stated in late 2019.

“The Maine lobster fishery has repeatedly made significant improvements to their practices and modifications to their gear to protect right whales, including the implementation of weak link mandates in 1997 and again in 2007,” Senators Collins and King and Representatives Pingree and Golden wrote.  “Notably, there have been no entanglements directly attributed to Maine lobster gear in more than 15 years. Further, National Marine Fisheries Service (NMFS) data demonstrates that ropes removed from right whales in recent years are not typical of those used in Maine’s lobster fishery.”

“The state of Maine is doing nothing. There is no research, no funding” for any alternatives to using ropes lines to fish, Klyver said. He has been trying to convince Marine Resources Director Patrick Keliher to consider testing ropeless technology, “but he’s been very hostile to the idea,” Klyver said.

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