Judge Says He'll Decide Within 2 Weeks When Feds Must Issue New Right Whale Protection Rules

Aug 4, 2020

A federal judge says that within two weeks he will decide when, exactly, federal regulators must issue new rules to protect endangered North Atlantic right whales.

New rules could force costly changes for lobstermen in Maine and the rest of New England, because the rope they use to haul their traps poses a threat of entanglement for the whales.

The federal government and the lobster industry say any change should wait until May 2021 to allow for full review and public comment on new rules once they are proposed. In oral arguments before U.S. District Court Judge James Boasberg Monday, their lawyers argued that the courts should not be in the business of micro-managing the fishery.

But conservationists noted that Boasberg has already found that the government's current rules violate the Endangered Species Act. They argued that more protective rules should be in place by February to avert further risks to the roughly 400 whales left on the planet.

"(The National Oceanic and Atmospheric Administration) is not going to do anything for right whales until the final rule is in effect on the water and, in the meantime, the right whales are left with nothing except for the risk of more entanglements," said Kristin Monsell, a lawyer with the Center for Biological Diversity.

"There comes a point where too much process undermines the very purposes of the state the agency is acting under," she added. "We can't process the right whales out of existence. They need change on the water now."

A lobsterman throws additional fishing rope onto a pile in Rockland, Maine, on Friday, March 27, 2009.
Credit Pat Wellenbach / AP Images

The conservation groups are also calling for an immediate and year-round ban on fishing with rope in an area off Nantucket where the whales have been congregating in recent years.

But a lawyer for the Maine Lobstering Union, Alfred Frawley, argued that would cause unwarranted economic harm, because the whales are known to be present mostly for a limited period in the spring.

"Shutting down fishing in an area where right whales right now are not in is only going to drive fishing in that area to other areas where right whales are," Frawley said. "It's not a scientific issue, it's a common sense issue. Of course fishermen are going to move into the margins to make a living. They have gear, they have boats to make payments on, they have families to support."

During the hearing, Judge Boasberg indicated he believes the process is taking too long.

"It seems to me the problem here, no mystery, is that states as well as lobster organizations have a clear incentive to delay as long as possible if the new rules will be more restrictive than what is in place currently," he said. "They have no reason to participate in a timely or expedited process."

Boasberg said he will rule on a date for new rules by mid-August. He also said that whatever date he sets for change on the water, it will be a "hard" date that he would expect the government to comply with.

Originally published at 3:45 p.m. Aug. 3, 2020.