In a ruling that could create greater protections for North Atlantic right whales, a federal judge ruled Monday that the National Marine Fisheries Service violated the Endangered Species Act and other federal laws when it made the controversial decision last year to reopen long-closed fishing grounds off Nantucket.
The ruling, which was a major victory for conservation groups, requires the agency to renew the ban on gillnet fishing in about 3,000 square miles of water south and east of Nantucket. Gillnets, walls of netting that rise vertically in the ocean to catch many fish at a time, present a major risk to right whales, whose numbers have plummeted by about 20 percent since 2010. Scientists say there are fewer than 400 left, and the main threat to their survival has been entanglements in fishing gear.
US District Judge James E. Boasberg of federal district court in Washington, D.C., wrote that his decision was “not a close call.” In reopening the fishing grounds under industry pressure, the agency violated the federal Magnuson-Stevens Act, which has governed the fishing industry since 1976.
To emphasize his view that the agency had acted illegally, Boasberg quoted Herman Melville’s “Moby-Dick” in the opening line of his 32-page ruling.
“Demonstrating that ‘there is no folly of the beasts of the earth which is not infinitely outdone by the madness of men’ … humans have brought the North Atlantic right whale to the brink of extinction,” he wrote.
Officials at the National Marine Fisheries Service declined to comment on the ruling. The lead plaintiff in the case, the Boston-based Conservation Law Foundation, praised the decision.
“Expanded fishing in a right whale hot spot flies in the face of the Endangered Species Act,” said Erica Fuller, a senior attorney at the foundation. “This ruling rightfully reverses a dangerous course and will give right whales the protection they need from fishing gear. We cannot afford to lose even one more of these critically endangered creatures.”
The agency’s scientists have said that the species can’t sustain even one unnatural death a year. In the past three years, 30 right whales have died. When a cause of death could be determined, all were found to have died from either entanglements in fishing gear or ship strikes.
Boasberg’s ruling, however, does not apply to the scallop industry, which has been allowed to fish in the area. The lawsuit did not contest the right of scallopers to use their dredging equipment in the area, as they have not been found to harm the marine mammals.
“It reaffirms that the scallop industry is not at issue with regards to right whale conservation,” said Drew Minkiewicz, an attorney at the Fisheries Survival Fund in Washington, D.C., which represents the scallop industry.
John Pappalardo, CEO of the Cape Cod Commercial Fishermen’s Alliance, whose members may be most affected by the ruling, said he had yet to read the decision.
In his ruling, Boasberg echoed the concerns laid out by a whistle-blower complaint filed recently with the agency’s inspector general, which claimed that the Fisheries Service misrepresented the views of its own scientists to justify opening the long-closed areas.
He noted that the agency’s decision reopening of the areas — after being closed for 20 years — came after its scientists found that such a decision “may affect” right whales.
Agency officials have downplayed those concerns.
“Reopening the closed areas would not affect right whales or their critical habitat in a manner beyond what was considered in prior” reviews of the Endangered Species Act, which requires that any fishing not “jeopardize the continued existence” of an endangered species, agency lawyers wrote in a previous filing to the court.
As a result, they argued, the agency wasn’t required to conduct a deeper review and consult with all branches of the Fisheries Service before opening the closed areas, they wrote.
The foundation argued that such a review was legally required because the agency was basing its decision on old assumptions and didn’t consider new findings on the dangers of entanglements in fishing gear.
In his ruling, Boasberg wrote that the foundation’s position was “unequivocally supported” by the Endangered Species Act.
The agency’s “duty was clear,” he wrote. Once scientists in the agency make “the determination that its action ‘may affect’ a listed species, it is without discretion to avoid consultation with the expert agency as to the effects of the action on the listed species.”
He added: “The court cannot excuse this breach.”
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. Abel can be reached at email@example.com. Follow him on Twitter @davabel.