Conservation groups claim flaws in new federal right whale document 



WASHINGTON, D.C. — Now that they have released a new biological opinion, federal fisheries managers are asking a federal court to end the ongoing litigation over the critically endangered North Atlantic right whale.  

Last month, the federal government filed for a final judgement in the lawsuit filed against the National Marine Fisheries Service by several conservation groups, including the Center for Biological Diversity, the Conservation Law Foundation, Defenders of Wildlife and the Humane Society.  

NMFS argued that, if there was an issue with the adequacy of the new biological opinion – a document from the service that states whether or not a federal action will jeopardize a species or its habitat – a new challenge would have to be filed.  

The conservation groups have pushed back against this legal logistics claim and have filed a motion of their own contending that there are several issues with the biological opinion. The new opinion does not address the issues the court found in the document’s previous iteration, which are central to the lawsuit in the first place.  

“NMFS cannot simply ignore the Court’s Opinions and Orders because it disagrees with the analysis or because compliance would be inconvenient,” the groups wrote in a recent filing. 

Last year, a federal judge found that the NMFS was in violation of the Endangered Species Act when it allowed the American lobster fishery to continue without an incidental take permit for North Atlantic right whales. Entanglements are considered one of the biggest threats to the species, which now has less than 400 individuals.  

The court vacated the NMFS’s 2014 biological opinion for the lobster fishery and ordered the federal agency to come up with a new one by June 2021.  

NMFS released a new biological opinion at the end of May, laying out the goals for the whales’ recovery in relation to the lobster fishery. NMFS also provided a framework it would use to protect whales and reduce the number of deaths connected to fishing. Specific actions to get to those goals are still being hashed out.  

The conservation groups that sued the NMFS over the 2014 biological opinion say that the new one released this spring also does not comply with the legal requirements. They also say it did not include the needed “incidental take statement” that authorizes deaths and serious injuries of right whales that will result from the continued operation of the fishery.  

Instead of coming up with a biological opinion that complies with the Endangered Species Act and the court’s orders, the NMFS’s 2021 biological opinion has the same problem as the previous one, according to the conservation groups. It again fails to include an incidental take statement even after concluding that the lobster fishery will continue to kill and seriously injure right whales. 

Even though there are prudent measures in the new biological opinion, they cannot substitute for the incidental take statement, the groups wrote.  

They asked that the court find the NMFS in violation of the court’s orders and command the agency to come into compliance with the Endangered Species Act within 60 days. “Ordering NMFS to act within 60 days is not only well within the Court’s power but is necessary to remedy the agency’s pattern of delaying actions to protect right whales from entanglements in fishing gear,” they wrote. 

The Maine Lobster Union and the Maine Lobstermen’s Association are expected to file responses to both the motions of the NMFS and the conservation groups this month.  

Ethan Genter

Ethan Genter

Ethan is the maritime reporter for the Ellsworth American and Mount Desert Islander. He also covers Bar Harbor. When he's not reporting, you'll likely find him wandering trails while listening to audiobooks. Send tips, story ideas and favorite swimming holes in Hancock County to [email protected]

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