Court Opinion Says Endangered Whales Not Protected Enough From Harm of Lobster-Fishing Gear

Judge James E. Boasberg of the District of Columbia District Court issued an opinion granting The Center for Biological Diversity’s motion for summary judgment regarding the complaint the nonprofit filed against the National Marine Fishing Service (NMFS), the Secretary of Commerce and defendant-intervenors such as the Maine Lobstermen’s Association.

According to Friday’s opinion, entanglement from fishing gear is the greatest human-threat to the remaining 370 North Atlantic right whales and this gear is often dropped into the ocean to catch lobster. Before the National Marine Fishing Service authorizes new fisheries, it must file a Biological Opinion finding the fishing operations will not jeopardize the right whales. The plaintiff filed the complaint against the defendants because their Biological Opinion does not comply with the Endangered Species Act (ESA).

The court agrees that the National Marine Fisheries Service’s 2021 Biological Opinion violates the Endangered Species Act because it does not satisfy the Marine Mammal Protection Act’s (MMPA) “negligible impact” requirement and the 2021 Final Rule violated the time requirements. Specifically, the court notes that the Biological Opinion and Final Rule, which changed fishing gear requirements, violate the ESA and MMPA. As a result, the court holds that both the Biological Opinion and Final Rule are invalid.

Judge Boasberg adds that “this may seem a severe result for the lobster industry and NMFS. But no actor here — neither the Court nor the Service — operates free from the strict requirements imposed by the MMPA and ESA.”

However, the opinion states, “Cognizant of the potential effects of this ruling on the lobster industry — and on the economies of Maine and Massachusetts —and given the highly complex statutory and regulatory environment that this case involves, the Court orders no remedy here.  Instead, it will offer the parties the opportunity for further briefing to articulate alternatives the Court may select.”