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Judge rules against lobstermen, says federal rules protecting right whales don’t overreach

A North Atlantic right whale fed on the surface of Cape Cod Bay in 2018.Michael Dwyer/Associated Press

A US District Court judge in Washington, D.C., handed a victory Thursday to environmental groups and rejected a challenge to federal rules to protect North Atlantic right whales that was brought by New England lobstermen, who argued the requirements go too far and are based on flawed data, court records show.

The ruling prompted sharp reactions from both sides of the issue.

Maine Governor Janet Mills, criticized the judge’s decision as being “so out of touch with reality.”

“The National Marine Fisheries Service has consistently interpreted the data in the most conservative way possible, without accounting for the impact of ship strikes on whales and whale entanglements in Canadian snow crab gear, putting all of the burden for right whale protection squarely on the shoulders of Maine’s lobster fishery,” Mills said in a statement.


Jane P. Davenport, senior attorney at Defenders of Wildlife, lauded the decision, but said that federal officials must do more to protect the endangered whales.

“The good news today is that the court upheld the agency’s science,” Davenport said in an interview. “Of course, from the conservation point of view, the science has never really been in dispute. The question has been what’s the agency doing about the science. And our position has been that it’s not going far enough fast enough to meet the conservation crisis that the right whale is in.”

Lobstermen had argued that a report issued last year by the National Marine Fisheries Service that set new goals for reducing deaths of North Atlantic right whales “overstates the risks lobstering poses to the whale and consequently overregulates the industry,” according to court documents.

“Because [federal officials] overstated their industry’s risk to right whales, they contend, the Rule imposes some needless and draconian risk-reduction measures — e.g., restrictions on the number of vertical fishing lines in certain areas, seasonal closures, and the requirement that fishing lines contain weak links that whales can break free from,” Judge James E. Boasberg wrote.


The lobstermen had sought to have the judge rule that both the report and later requirements guided by it were unreasonable because the report “made a slew of scientific errors that caused it to overestimate the lobster fishery’s effects on the right whale,” records show.

They made the argument even though Boasberg had ruled two months ago in a separate case that the report was invalid because it violated two federal statutes by not protecting right whales sufficiently, court records show.

Boasberg rejected the lobstermen’s claim Thursday and sided with the federal agency.

“NMFS reasonably explained how it estimated the right-whale population and modeled that population into the future, drawing on what it rationally assessed was the best available data and submitting its methods for peer review,” the judge wrote.

The case was brought by the Maine Lobstermen’s Association, the Maine Department of Marine Resources, the Massachusetts Lobstermen’s Association, and the Maine Lobstering Union Local 207, records show. The defendants include the National Marine Fisheries Service, the assistant administrator for fisheries at the service, the secretary of commerce, and the environmental groups Conservation Law Foundation, the Center for Biological Diversity, and Defenders of Wildlife.

Kristen Monsell, senior attorney at the Center for Biological Diversity, said the ruling “affirms that right whales can’t wait any longer for stronger protections from deadly entanglements in fishing gear.”


“The science has shown this for years, and it’s disappointing that the agency hasn’t taken more meaningful action, leaving whales to suffer the consequences,” Monsell said in a statement. “The court’s latest ruling sends another signal that the federal government needs to take bold action to save these critically endangered whales from extinction.”

Conservation Law Foundation Senior Attorney Erica Fuller said the judge had “made the right decision for right whales today.”

“While the federal government’s protections for whales have not gone far enough, they have made reasoned decisions about the threats posed by the Maine lobster fishery in the absence of evidence to the contrary,” Fuller said in a statement. “We must switch the discussion to measures that allow fishing and help recover the right whale species before it’s too late. The clock is ticking.”

A spokeswoman for the National Marine Fisheries Service declined to comment on the ruling, saying the service does not comment on pending litigation.

The Maine Lobstermen’s Association said the court and the fisheries service “have failed Maine’s lobster industry.”

“It has become crystal clear that neither grasp the devastating impacts their decisions will have on the Maine lobster industry, our coastal communities, and the State of Maine,” the association said in a statement. “The court’s decision provides a blank check for NMFS to continue to use admitted ‘worst case scenarios’ and disregard actual data in its regulation of a fishery that has zero documented right whale entanglements over the last 18 years.”


“This disappointing decision puts the future of Maine’s lobstering heritage at great risk, and along with it the livelihoods of thousands of hard-working men and women,” the association said. “But this is not the end. We won’t go down without a fight.”

Patrick Keliher, commissioner of Maine’s Department of Marine Resources, declined to comment on the ruling.

The Maine Lobstering Union and the Massachusetts Lobstermen’s Association did not immediately respond to requests for comment.

The North Atlantic right whale has long been endangered, with two main causes of death being boat strikes and fishing gear entanglements, according to court documents. The population was estimated at just 368 in 2019, and “for the right-whale population to remain stable, humans must kill fewer than one right whale per year,” Boasberg wrote.

David Abel of the Globe staff contributed to this report.

Correction: Due to a reporting error, an earlier version of this story misstated the environmental group represented by attorney Erica Fuller. The Globe regrets the error.

Jeremy C. Fox can be reached at jeremy.fox@globe.com. Follow him on Twitter @jeremycfox.