Defenders of Wildlife Intervenes in Maine Lawsuit in Order to Protect Right Whales

Today, Defenders of Wildlife, along with the Conservation Law Foundation and Center for Biological Diversity, filed to intervene in a case filed by the Maine Lobstering Union (MLU) in the District of Maine on September 27, 2021. MLU is challenging NOAA Fisheries’ recent decision to implement a closure to lobster fishing using vertical buoy lines in federal waters off Maine from October to January of each year—when critically endangered North Atlantic right whales and fishing lines are more likely to overlap. MLU has already filed an emergency motion to prevent the closure from taking effect on October 18.

This closure is part of a suite of regulatory measures that NOAA Fisheries recently finalized to amend the Atlantic Large Whale Take Reduction Plan under the Marine Mammal Protection Act (MMPA). Defenders and its conservation allies have themselves recently challenged the Plan and the agency’s biological opinion for violating the MMPA and the Endangered Species Act. However, Defenders supported this and several other new or extended closures off Maine for their vital conservation benefits, as well as encouraging the use of innovative new technologies like ropeless fishing gear. 

“Although the new Plan doesn’t go nearly far enough to stop the right whale’s precipitous decline, the closures represent important first steps to stem the bleeding,” said Jane Davenport, senior attorney at Defenders of Wildlife. “The lawsuit is based on half-truths, omissions and flagrant misinformation about the entanglement risks that the Maine lobster fishery poses to right whales. We look forward to setting the record straight by defending what NOAA Fisheries got right.”

The lawsuit is premised on often repeated, but false, assertions by the Maine lobster industry that right whales are not at risk of entanglements in Maine’s nearshore or offshore waters, despite overseeing hundreds of thousands of fishing lines creating a deadly gauntlet for the highly migratory species. The industry argues that it’s being unfairly targeted because there’s no proof its lines are responsible for right whale entanglements. The Maine Coalition for North Atlantic Right Whales recently highlighted the flaw in this argument, showing that 98 percent of right whale entanglements cannot be traced to a particular fishery because of inadequate gear marking and the difficulty of retrieving gear from entangled whales. Meanwhile, right whales have been detected in Maine waters in every month of the year.

“Absence of evidence is not evidence of absence,” said Davenport. “For decades, the lobster industry fought against effective gear markings that would help identify the fishery responsible for an entanglement. But right whales’ bodies tell the painful truth – 85 percent of surviving right whales bear identifiable entanglement scars and 60 percent have been scarred by more than one entanglement.”

The North Atlantic right whale is one of the world’s most critically endangered large whales, with roughly 350 remaining. Its population has been in steep decline since 2010. Since 2017, the species has been experiencing an Unusual Mortality Event, with 50 observed mortalities and mortally injured whales. To make matters worse, two-thirds of right whale mortalities are never observed. These deaths have been caused almost exclusively by commercial fishing gear entanglements and vessel strikes in U.S. and Canadian waters. Fishing gear entanglements not only kill or mortally injure right whales outright; the stress of even non-lethal entanglements is linked to the species’ shrinking body size and dramatically depressed calving rates. Deaths now outpace births by 3:2.