'It's gonna kill us': Lobstermen concerned about proposed regulations to protect whales

Anastasia Lennon, Standard Times

Published Dec 17, 2020 

The Massachusetts Division of Marine Fisheries is proposing multiple amendments to current rules regulating fixed gear fisheries in an effort to protect an endangered species, the North Atlantic right whale. Two local lobstermen say the proposed regulations threaten their livelihoods. 

"It's gonna take roughly 30% of my income away from me," said Dave Magee, a lobsterman from Mattapoisett who fishes out of Fairhaven. 

One of the key amendments would expand the existing large whale seasonal trap gear closure, which runs from Feb. 1 to April 30, to all waters under the jurisdiction of the commonwealth, highlighted with dark red in the map below. The division would also have the authority to extend trap gear closures if right whales remain present after April 30.

Magee, 57, sets traps in the proposed closure area during the winter. He said he operates in other areas at other times of the year, but that fishing in the proposed closure area over the winter yields lobsters that sell for higher prices. 

Magee also said the no-fishing period would last longer than three months as he would have to start moving his 800 traps at least a month in advance due to the amount of gear and in anticipation of adverse weather. 

During a December hearing, when asked if the division had studied the economic impact of these regulations on lobstermen, Division of Marine Fisheries Director Daniel McKiernan said there is a "burden attributable" to removing gear and bringing it back when the area reopens, but that the division did not have any estimates.

McKiernan said the proposed regulation changes are in response to two challenges: the long-term decline of right whales and recent litigation. 

The North Atlantic right whale population has dropped from about 481 individuals in 2011 to 366 in 2019, according to the Associated Press and the Division of Marine Fisheries. 

A citizens suit was filed against the state in January 2020 arguing the division licenses and regulates vertical buoy lines that violate the Endangered Species Act as the ropes may cause right whale entanglements, which can prove fatal or life-threatening.

Right whales, which can be found along the East Coast from Florida to Canada, have been listed as endangered since 1970. According to the National Oceanic and Atmospheric Administration, entanglement in fishing gear is a primary cause of serious injury and death for many whale species, including the North Atlantic right whale.

"Entanglement and vessel strikes continue to be a significant source of serious injury and mortality," McKiernan said during the hearing. "Where whales are being entangled always generates much debate and controversy because it's unusual to retrieve the entangling gear off the whale to successfully identify the gear back to the region, the fishery or the person." 

Magee said he's never seen a right whale in the proposed closure area during the winter. 

"I've been fishing 40 years, I have never ever seen a right whale in Massachusetts state waters in Area 2," Magee said. Area 2, formally called Lobster Management Area 2, extends from the waters south of Rhode Island to the Cape. "They’re just doing this to appease the whale people and environmental people and what it's doing, it’s gonna basically put me out of business."

However, Erin Burke, a protected species specialist for the Division of Marine Fisheries, said sightings in Massachusetts waters south of the Cape, while not "extremely common," are also not unheard of.

Burke cited and shared screenshots of maps that show sightings from January through December, which goes beyond the closure period. According to the NOAA Fisheries sighting system, right whales have been sighted in the proposed closure area during the closure period. 

Other proposed regulation changes include lowering commercial lobstermen's maximum buoy line diameter to three-eighths of an inch, and requiring all gear to be rigged with buoy lines that break when exposed to 1,700 pounds of tension. The agency cited research that concludes this breakaway strength could reduce the number of life-threatening entanglements for large whales by at least 72%. 

Part of their rationale, McKiernan said, is also to absolve Massachusetts lobstermen as the sources of future entanglements. He said the new rule can "effectively rule out" Massachusetts permit holders whenever rope is seen on right whales with diameters larger than what is allowed by the state. 

Magee said he can get on board with the gear change. 

"That's all something we can live with," he said. "It's going to cost us a little money to change that stuff, but I still can make a living with those kinds of changes."

Tom Tomkiewicz, a Fairhaven lobsterman, was not sold on the regulation, saying it would cost more money and that the ropes, being thinner, would likely need to be replaced more frequently. 

During the hearing, the Division of Marine Fisheries discussed grants with NOAA Fisheries and possible state funding to distribute some new gear to the state's lobstermen. 

Tomkiewicz, 45, said he fishes in the same management area as Magee over the winter and estimates the regulations could cut 30% of his catch and up to 50% of his income, depending on the selling price. 

"As far as the fishermen go, this is gonna kill us, it really is," he said. "All the bait guys, the marine supply guys, the shipyards, down to the restaurants we go to once or twice a week. We’re not going to be able to go because we won’t have the money. It's going to affect a lot of people not even involved."

Magee said he planned on having his 15-year-old son take over his business after he graduates high school. Now, he said it's not looking like that will be a viable option. 

"I put a lot of money into this business the last few years," Magee said. "If I knew all of this [regulation] was coming down, I wouldn’t have had all this stuff done."

The deadline to submit public comment to the Massachusetts Division of Marine Fisheries is Friday, Dec. 18, at 5 p.m. Written comments should be addressed to Director Daniel McKiernan and submitted by email to marine.fish@mass.gov, or by post to 251 Causeway Street, Suite 400, Boston, MA 02114.

When the public comment period closes Friday, the division will communicate its final recommendation to the Marine Fisheries Advisory Commission on Jan. 7. After that, the division will submit regulations for final review with the intention of putting into effect the new regulations as early as February 2021.