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A federal judge’s order last week to temporarily stop the planned closure of a large swath of the Gulf of Maine to lobster fishing is welcome news to Maine’s lobster industry, but also to those who believe that data should guide decisions about protecting endangered North Atlantic right whales.
In August, federal fisheries regulators announced new rules for lobster fishing gear and the closure of 950 square miles of ocean about 30 miles off the coast from Mount Desert Island to Casco Bay to traditional lobster fishing from October to January. Ropeless fishing, a new and largely untested way of setting and retrieving traps using a smartphone, would still be allowed in this area under the rules. The closure was set to go into effect this week.
The new regulations came despite years of pleas from lobstermen, Maine elected officials and this editorial board that any decisions about measures to be taken to protect the whales needed to be made based on actual data about where and how whales are being injured, entangled and, too often, killed.
Without better data, Maine’s lobster industry was being asked to make substantial — and costly — changes that may not have addressed the biggest threats to right whales. Other threats include collisions with shipping vessels.
“We will continue to push for science and data that reflect what is truly happening in our industry,” Alfred Frawley, a lawyer for the Maine Lobstering Union, which brought the lawsuit against NMFS, said in a statement.
In a draft biological opinion issued earlier this year, the National Marine Fisheries Service essentially acknowledged the lack of specific data on what causes whale mortality, particularly information on collisions between ships and whales. Yet, it went ahead with the restrictive rules, which also impact New England’s crab fishery.
In an order issued on Saturday, Federal District Court Judge Lance Walker temporarily stopped NMFS from imposing the closure because the agency hadn’t presented enough evidence to justify it. Walker put the closure on hold while he more fully considers the merits of the case brought by the Lobstering Union. He also noted that the draft biological opinion put closure as a management option after gear modification rules had failed. Instead, NMFS imposed gear modifications — including putting more traps between buoy lines and the use of weaker rope or clips on buoy lines so that a rope will break if a whale becomes entangled — at the same time that it closed off part of the Atlantic Ocean to lobster fishing.
“Without trivializing the precarity or significance of the right whale as a species, I find that the certain economic harms that would result from allowing this closure to go into effect outweigh the uncertain and unknown benefits of closing some of the richest fishing ground in Maine for three months based on a prediction that it might be a hotspot for right whale entanglement,” Walker wrote in his 28-page ruling.
“While the public interest in this case cuts both ways — pitting a culturally and economically valuable fishery against the preservation of an equally iconic endangered species — it strikes me that there is an overriding public interest in insisting on orderly and epistemically sound rulemaking that members of the public have reason to believe is grounded in reality,” he added.
In other words, the rules should match the data and information that regulators have in hand. This is not only a good ruling for the lobster industry, but also for those of us who think data needs to be front and center when balancing the needs to protect an endangered species and preserve a critical fishery.