National Marine Fisheries Service found in violation of Endangered Species Act

National Marine Fisheries Service found in violation of Endangered Species Act

By Doug Fraser
Posted Apr 10, 2020


WASHINGTON — A federal judge ruled Thursday that the National Marine Fisheries Service violated the Endangered Species Act by allowing the lobster fishery to continue operation despite a record of entangling highly endangered North Atlantic right whales.

U.S. District Judge James Boasberg wrote in his decision that the failure of the fisheries service to include the required estimate of how many right whales could potentially be harmed or killed by lobster gear in a 2014 ESA filing was “about as straightforward a violation of the ESA as they come.”

The lawsuit was filed in 2018 by the Conservation Law Foundation, Defenders of Wildlife, Center for Biological Diversity and the Humane Society of the United States. Commerce Secretary Wilbur Ross, the Massachusetts Lobstermen’s Association and others were named as defendants.

The lobster fishery is the most valuable on the Atlantic coast and one of the most lucrative in North America, with $630 million paid to fishermen in 2018.

The North Atlantic right whale is the world’s most endangered great whale, with an estimated 411 individuals but under 100 females. Researchers have found that 85% of right whales have entanglement scars from ropes that are used in fixed gear fishing equipment including gillnets and lobster pots.

In his decision, Boasberg wrote that the Endangered Species Act requires that activities not “jeopardize the continued existence of endangered and threatened species.” An activity can be pursued, even if there is the potential for harm, if there are alternatives that reduce the level of harassment, injury or death. But the agency must file a written statement estimating the number of animals potentially harmed.

But when the fisheries service submitted a biological opinion in 2014 that allowed lobster fishing to continue, it failed to produce the required estimate of potential harm, known as an incidental take statement. Plaintiffs said that the fisheries service was caught in a regulatory trap.

Scientists had determined that the right whale population could only sustain less than one death from human causes a year if it was to rebuild to a sustainable level, but the fisheries service concluded in 2014 that 3.25 whales a year, on average, were being killed in lobster gear.

“What the government was grappling with was that they couldn’t issue an incidental take statement because if they did it showed they jeopardized the species,” said Conservation Law Foundation senior attorney Emily Green, who felt the tactic was to ignore the required estimate of how many right whales lobster gear would harm or kill.

“You can’t ignore it, because you can’t comply,” Green said. “That’s a clear violation of the law.”

“They knew they couldn’t meet it,” said Sharon Young, senior strategist on marine issues for the Humane Society.

Boasberg ordered all parties to submit a joint status report by April 16 laying out a schedule for briefings on how to remedy the problem.

Beth Casoni, executive director of the Massachusetts Lobstermen’s Association, said her organization was carefully reviewing the decision.

“The MLA expects to submit briefing to the court during the remedy phase of this proceeding to protect the rights and livelihood of the lobstermen it represents,” she wrote in an email.

Fisheries service spokeswoman Allison Ferreira said her agency was still studying the documents and did not have a comment Friday.