fb-pixel

In another significant ruling for right whales, a federal judge rules that Massachusetts is violating the Endangered Species Act

In this April 10, 2008 photo, three right whale tails surface in Cape Cod Bay near Provincetown.
In this April 10, 2008 photo, three right whale tails surface in Cape Cod Bay near Provincetown.Stephan Savoia/Associated Press

In another shot across the bow of the lobster industry, a federal judge ruled Thursday that state regulators have violated the Endangered Species Act by licensing lobstermen to use fishing gear that entangles North Atlantic right whales.

The ruling requires Massachusetts officials to obtain a permit from the National Marine Fisheries Service to license vertical buoy lines, the ropes that connect lobster traps on the seafloor to buoys at the surface.

Those lines are vital to the fishery but have been the leading cause of death of right whales over the past decade, accounting for more than half of all known causes. In the past three years, 30 right whales have died, reducing their population to around 400.

Advertisement



In her ruling, Judge Indira Talwani of the US District Court in Boston said the continued use of buoy lines was likely to cause further harm to right whales, which scientists say could become functionally extinct within the next 20 years.

“The uncontroverted evidence demonstrates that right whales are being pushed towards extinction and that, without intervention, continued entanglements will hasten the end of this species,” Talwani wrote.

The ruling follows a similar decision by a federal judge in Washington, D.C., who ruled several weeks ago that the National Marine Fisheries Service had violated the Endangered Species Act by failing to reduce the risk of entanglements.

In response to the ruling, state officials acknowledged that buoy lines present a threat to right whales. They cited measures taken to reduce the risk, such as closing Cape Cod Bay to lobster fishing from February to May.

“The [state] remains committed to the protection and conservation of the North American right whale, and is working with the Attorney General’s Office to review the ruling and determine next steps,” said Katie Gronendyke, a spokeswoman for the state Executive Office of Energy and Environmental Affairs.

Advertisement



Federal regulators declined to comment.

The lawsuit against state regulators was brought by Richard “Max” Strahan, a longtime whale advocate who represented himself in court.

“This is a great victory for right whales,” said Strahan, a perennial litigant who calls himself the “Prince of Whales.”

Strahan has filed a similar lawsuit in federal court in Maine, where the lobster industry last year generated about $485 million.

“Right whale entanglements now have to come to an end,” he said. “Lobstermen won’t be able to use vertical buoy ropes. If they don’t adapt, their industry is going bye-bye.”

Representatives from the Massachusetts Lobstermen’s Association did not respond to requests for comment.

It’s unclear whether the fisheries service would grant a so-called incidental take permit to Massachusetts to allow lobstermen to continue using buoy lines.

To do so, the fisheries service would have to conclude that “the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild,” Talwani wrote.

But the agency’s scientists have acknowledged the threat of buoy lines, and the grave state of the species. They have said that right whales can’t sustain more than one unnatural death a year.

At least 83 right whales have died since 2010, and when a cause of death was determined, all were the result of human beings.

The fisheries service already is weighing a proposal that could reduce buoy lines in the Gulf of Maine by half. Lobstermen have criticized the proposal as draconian.

Advertisement



Michael Moore, director of the Marine Mammal Center at the Woods Hole Oceanographic Institution, lauded the ruling, saying the “judge understands the simple truth that if there is rope in the water column, and whales come and go in the region, entanglement risk is real, and significant in terms of mortality and morbidity, especially for reproductive success.”

He urged the federal government to help the lobster fishery transition to ropeless fishing, which would allow lobstermen to retrieve their traps without buoy lines.

“Until the federal government makes a substantial investment in ropeless fishing, both the trap industry and the whales will face unsustainable trauma.” he said.

In her ruling, Talwani said Massachusetts has done more than most states to protect right whales, but it hasn’t been enough.

“Despite the laudable, and sizeable, efforts Massachusetts has taken to reduce the likelihood of entanglement, the evidence portends that Plaintiff will be able to demonstrate that state-licensed [buoy lines] have harmed and will continue to harm right whales,” she wrote.

She also cited studies that show buoy lines not only kill right whales, they often scar and otherwise harm them, reducing their ability to reproduce. There are now believed to be about only 85 breeding females left.

Known entanglements “vastly underestimate actual entanglements," she added.

“The court finds that irreparable injury to the species will occur even in the absence of a right whale death caused by state-licensed” buoy lines, she said.

Talwani concluded by putting the onus on the fisheries service.

Advertisement



“If defendants are not able to obtain a permit, then the hardship that may ultimately result from the court’s order is no more than the result of Congress’s decision to ‘halt and reverse the trend toward species extinction, whatever the cost,’” she wrote.

If the fisheries service doesn’t grant a permit to the state within 90 days, the judge said she would then consider ordering the state to ban the use of buoy lines.

David Abel’s reporting on right whales was made possible with the support of the Pulitzer Center, as part of its nationwide Connected Coastlines reporting initiative.


David Abel can be reached at david.abel@globe.com. Follow him on Twitter @davabel.