A North Atlantic right whale swims in Cape Cod Bay.
Peter Flood In a ruling that could have a major impact on the region’s lobster fishery, a federal judge ruled Thursday that the National Marine Fishery Service violated the Endangered Species Act by failing to reduce the risk of North Atlantic right whales becoming entangled in millions of lobster lines. The lines, which extend from traps on the seafloor to buoys on the surface, have in recent years been the leading cause of death for the whales, whose numbers have declined by about 20 percent over the past decade to a population of just 400. Without significant changes to the lobster fishery, right whales could go extinct within two decades, scientists say. The ruling by Judge James Boasberg of the US District Court in Washington, D.C., found that the agency’s failure to follow the law, after its scientists found that the lobster fishery was threatening the viability of right whales, was “about as straightforward a violation of the [Endangered Species Act] as they come.”
Environmental advocates who filed the lawsuit said they hoped the decision would lead to greater protections for right whales. “This decision confirms that even the federal government is not above the law,” said Erica Fuller, a senior attorney at the Boston-based Conservation Law Foundation, one of four groups that filed the lawsuit. “We must do whatever it takes to ensure right whales are here for future generations, and that starts with obeying the Endangered Species Act.” Scientists at the agency have said that the species can’t sustain more than one unnatural death a year. Over the past three years, 30 right whales have been found dead, and when a cause of death was determined, all of them were found to have died as a result of entanglements or vessel strikes.
In a 20-page ruling, Boasberg called the agency’s failure to produce what is known as an incidental take statement — a requirement of the Endangered Species Act when the government finds that an industry or other actor has been threatening the sustainability of an endangered species — a “signal omission.” Buoy lines pose “an especially grave danger to the species,” he added. The judge noted that in 2014 the agency estimated that lobster lines would lead to more than three whale deaths a year, on average. “The figure was well over the … maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock, while allowing that stock to reach or maintain its optimum sustainable population,” he wrote.
Boasberg called the agency’s arguments for why they failed to comply with the requirements of the Endangered Species Act “a novel interpretation of the law.” “Defendants cannot rewrite the statute just because they do not agree with its consequences,” he said. Agency officials declined to comment on the potential impact of the judge’s ruling. “NOAA Fisheries is currently reviewing the court’s decision,” said Allison Ferreira, a spokeswoman for the fisheries service. Beth Casoni, executive director of the Massachusetts Lobstermen’s Association, said she was “carefully” reviewing the ruling.
“The MLA expects to submit a briefing to the court during the remedy phase of this proceeding to protect the rights and livelihood of the lobstermen it represents,” she said. Jane Davenport, a senior attorney at Defenders of Wildlife, a Washington-based advocacy group and another plaintiff, called the ruling “timely,” noting that just 10 calves were born this year, about a third of the number needed to prevent the species from going extinct. “Low calving rates are directly linked to the chronic stress of fishing gear entanglements,” she said. In his decision, Boasberg didn’t say what the agency must do now. But he said he would seek briefings about potential remedies soon. Kristen Monsell, oceans legal director at the Center for Biological Diversity, another plaintiff, said the decision “should send a clear signal that federal officials must take immediate action to protect these amazing animals from suffering more deadly, painful entanglements, before it’s too late.”
Researchers at the New England Aquarium also welcomed the ruling. “We have seen firsthand the trauma this species has suffered from fishing gear entanglements,” they said in a statement. “It has been incredibly challenging to witness their suffering and decline while also getting pushback from fishing industry representatives who remain resistant to considering changes to how they presently fish.”