Lobster traps line the bank at Gordon’s Wharf in Hancock. ISLANDER PHOTO BY ANNE BERLEANT

Whale rules, pending lawsuits focus of gloomy Advisory Council meeting

ELLSWORTH — A complicated and potentially grim future is predicted for the commercial lobster industry, with environmental groups, gear changes, the closure of offshore waters to lobster fishing and judicial rulings painting a “doom and gloom” picture, in the words of Department of Marine Resources (DMR) Commissioner Patrick Keliher. 

“I think there’s going to be a lot of moving pieces,” Keliher told Lobster Advisory Council members and others in virtual attendance at the council’s Dec. 15 meeting.  

Some of those pieces could spell the end of the commercial lobster fishery in Maine, DMR Deputy Commissioner Meredith Mendelson said, as she ran through the current lawsuits aimed at preserving the North Atlantic right whale. If any or all prevail, the lobster fishery will bear the brunt of the results. 

These days, lobstering is all about the right whale population, of which an estimated 336 whales – the lowest number in nearly 20 years – swam in the Atlantic Ocean in 2020. Right whales were listed as an endangered species in 1970 and became protected when the Endangered Species Act of 1973 was later passed. 

The National Marine Fisheries Service (NMFS), an office of the National Oceanic and Atmospheric Administration (NOAA), adopted a rule in May of 2021 to protect the endangered species. 

Lobster fishing, specifically the vertical lines used to attach buoys to lobster traps, was targeted by NMFS, which sought fewer whale entanglements in fishing lines as a way to lower mortality rates.  

“It’s incumbent on the DMR [Department of Marine Resources] to incorporate these measures into our state regulations,” DMR’s Director of Marine Policy Deirdre Gilbert said. 

The new rule represents Phase One of a 10-year plan that NOAA modeling predicts will, when fully implemented, reduce mortality rates by 87 percent. The Phase One target of a 60 percent reduction has already closed an offshore fishing area in Lobster Management Area 1 (LMA1).  

“I’m hearing a lot of stress and apprehension and despair,” said state Rep. Genevieve McDonald (D-Stonington), who lives on Deer Isle and serves on the Joint Standing Committee for Marine Resources, after the meeting. “These are sweeping changes that will change the way the Maine lobster fishery operates.” 

“And this is only phase one of a 10-year plan,” she added. “So, we know that there is more to come. Additionally, there is tremendous apprehension around the multiple lawsuits. It is a very difficult time for the Maine lobster fishery.” 

Currently there are three lawsuits in federal court and one in state court against the National Marine Fisheries Service (NMFS), all with implications for the state lobster fishery, Deputy Commissioner Mendelson said. 

One of the federal lawsuits, brought by the Center for Biological Diversity, seeks to have NOAA’s biological opinion, which includes a framework to reduce the mortality and serious injury of right whales in federal fisheries, vacated as being unlawfully issued.  

In April of 2020, the judge overseeing the case vacated the 2014 biological opinion that related to right whales but allowed until May of 2021 for NMFS to draft a new biological opinion, which it did. 

Now, Mendelsohn said, the Center for Biological Diversity seeks declaratory relief of the May 2021 biological opinion on grounds that it violates the Endangered Species Act, and the Administrative Procedures Act, which passed in 1946 and governs how federal agencies develop and issue regulations. 

“If those requests are granted, that will close the fishery,” she said, because “vacating the biological opinion means NFMS could not authorize the fishery to operate.” 

“The bottom line is this case … really represents the most significant threat to the fishery,” she concluded. 

The Maine Lobstermen’s Association has filed a federal lawsuit against NFMS and the Maine Lobstering Union has filed one in Maine related to the closure in LMA1. Additionally, whale protection activist Richard Max Strahan has three ongoing lawsuits that could have implications for the state fishery, Mendelson said. 

The DMR, and Legislature, are throwing some resources behind the lawsuits. 

“We are making a significant investment on behalf of the industry,” Keliher said. “We have a lot of work to do, and frankly we have an uphill battle.” 

Phase Two of the 10-year plan aims for a 60 percent mortality reduction in federal gillnet and Atlantic Coast trap/pot fisheries in 2023. Phase Three seeks an additional 60 percent risk reduction in all federal fixed gear fisheries in 2025, and Phase Four, if necessary, seeks up to an additional 87 percent risk reduction in all federal fixed gear fisheries in 2030.  

Supply chain issues hamper gear change 

Commissioner Keliher said Maine needs more time to implement the gear changes – specifically inserting the weak links in fishing lines that allow whales to break free – than the May 2022 implementation deadline. And Governor Janet Mills has asked federal lawmakers to push the May 1, 2022, implementation date to July 1, 2022. A big reason is supply chain issues. 

“It’s hard to comply with the rule if you don’t have the material to do that,” Keliher said. 

McDonald observed the same thing. 

“It appeared to me that the state waters requirement for weak links depended on 5/16th rope,” she said after the meeting. “So, if you have hundreds of fishermen going to 5/16th rope, it’s a supply chain issue. We’re already seeing [that].” 

Complicating the issue is that NOAA has only approved three brands of rope that can be inserted as weak links into fishing lines to comply with the new rule. Lobstermen may also attach plastic links or a “sleeve” to make the fishing lines comply. 

Lobster Advisory Council Vice President Jeff Putnam of Chebeague Island said he tried to buy 5/16th inch rope but couldn’t find any, or any 3/18th-inch rope. 

“I ended up finding some old stuff lying around,” he said. “I just think the supply chain issue is an important one … Just everything marine supply seems to be a challenge right now.” 

Council member John Drouin asked, “Are they going to close the fishery down because of the supply chain issue?” 

“We don’t know,” Keliher replied. 

NOAA has indicated that a delay because of supply chain issues, he continued, “won’t likely be addressed till closer to the implementation date.” 

Trawling up – or attaching multiple traps to one vertical line – will also be used to reduce fishing lines but the number of traps allowed between the exemption line to the 3-mile line still needs a decision. A three-trap limit on one line has been established for exempt waters except in zones B, C and D, where it’s two traps for one line and four traps for two lines. 

Council member David Tarr, a Brooklin lobsterman who also sits on the Zone C Lobster Council, said he would bring it up at the zone’s next council meeting. He would recommend a four-trap limit, he noted.  

“I don’t fish all winter, but the few people who do, it might help them,” Tarr said, “and help us meet all these requirements.”  

Lobster Advisory Council members will bring the information relayed at the meeting to their local lobster zone councils. 

“It’s an overwhelming amount of information,” McDonald said, “even for someone like myself who follows it.” 

She added, “It was the most depressing LAC meeting I ever attended since I started serving on the Council in 2014.” 

Anne Berleant

Anne Berleant

Reporter at The Ellsworth American
News Reporter Anne Berleant covers news and features in Ellsworth, Mariaville, Otis, Amherst, Aurora, Great Pond and Osborn. When not reporting, find her hiking local trails, reading or watching professional tennis. Email her at [email protected]

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