A lobster fishing boat travels out of Portland harbor at dawn, Friday, June 10, 2022, in Portland, Maine. Last year state's lobster industry set a record with $725 million for the total value of lobsters at the docks. Credit: Robert F. Bukaty / AP

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A federal judge ruled last week that federal fisheries regulators are not doing enough to protect North Atlantic right whales, an endangered species, from fishing gear used by New England’s lobster and crab fisheries.

The ruling – and the changes that it might compel – are another blow to Maine’s lobster industry. But, more, it is a condemnation of the National Marine Fisheries Services plans to protect the whales, which are thought to number less than 400. The judge, James Boasberg of the U.S. District Court for the District of Columbia, blasted the agency for approving a plan last year that allowed for continuing entanglements of whales in lobster and crab gear while gear changes were implemented to reduce these entanglements. For example, the plan allowed 2.6 entanglements in lobster and crab gear that could cause death or serious injury to right whales each year through 2025, although NMFS calculated that only 0.8 entanglements should be allowed in federal waters to preserve the whale population.

Consequently, that plan, called a biological opinion, was rejected by the judge. It was the second time Boasberg has rejected a plan to manage the fisheries to protect right whales. He did not put the rules that stemmed from the plan on hold, nor did he order that the lobster fishery shut down.

On Tuesday, a different federal court reinstated a seasonal closure to most lobster fishing of more than 900-square miles off the coast of New England to protect right whales. The court cited fisheries regulators congressionally mandated responsibility for protecting the whales in overturning a Maine court ruling that had halted the closure, which is in the fall and winter.

Interestingly, both conservation groups and fisheries organizations have called the biological opinion that was rejected last week flawed and asked that it be scrapped – for very different reasons. The conservationists argued that the plan didn’t include adequate restrictions to protect right whales. Fishing industry groups, including those representing Maine’s lobster fishery, have long argued that the plan was based on faulty science and unfairly punished the industry for harms they did not cause.

Now, these groups have yet another chance to bridge these gaps. Boasberg ordered NMFS and other parties to the lawsuit, including conservation and lobster industry groups, to develop alternative plans that would better protect the whales for the court to consider.

That work, we believe, is hampered by a lack of needed data. We remain puzzled and frustrated that years into legal wrangling over fishery rules and right whale protections, adequate data on the interactions between whales and fishing gear remains sparse.

To mix metaphors, imagery and science: If we can send a telescope into space and see images of the formation and death of stars and learn new details of galaxies that are millions of light years away, why do we not know where right whales are?

Under the now-rejected biological opinion, fisheries regulators finally enacted measures to track both commercial fishing and right whales. That information is essential to moving beyond anecdotal evidence – and some sparse data – about whether and where whale habitat and lobster fishing overlap. Without such data, lobster fishermen can rightly claim that they are being asked to make significant changes without evidence that they are causing harm.

At the same time, we’d encourage the lobster industry to move beyond messages that emphasize fighting regulations to highlight some of the many changes they have already made to reduce the threat to right whales. For example, many lobstermen in Maine are in the midst of replacing their trap lines with lines that will break away if hit by a whale. They are also marking their gear to better identify if rope from Maine is entangling right whales.

Judge Boasberg acknowledged this work, but essentially warned that it might not be enough. In his opinion, which is littered with marine metaphors, he also recognized the harm that more stringent restrictions could have on the lobster industry. That, he wrote, is why he asked the parties to work together to come up with more protective solutions.

As years of negotiations, rule changes and lawsuits have shown, this is no easy task. But, it is better than having draconian measures imposed by a court.

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The BDN Editorial Board

The Bangor Daily News editorial board members are Publisher Richard J. Warren, Opinion Editor Susan Young, Deputy Opinion Editor Matt Junker and BDN President Todd Benoit. Young has worked for the BDN...