December 13, 2021

Right Whale in the Wrong Place at the Wrong Time

Posted on December 13, 2021 by Gregory Bibler

On November 16, 2021, the First Circuit Court of Appeals issued an opinion reversing a district court’s order enjoining the National Marine Fisheries Service (“NMFS”) rule that barred the use of lobster traps with traditional buoy lines between October 1 and January 31 each year in a 967 square mile area located thirty nautical miles off the Maine coast. Although acknowledging this rule would impose major financial hardship on some lobster fishers, the First Circuit held they were unlikely to prevail in challenging what amounted to a seasonal closure in that area because it clearly effectuated two statutory mandates. The Marine Mammal Protection Act requires NMFS to prevent the depletion of endangered marine mammals that interact with commercial fisheries, the court stated, and the Endangered Species Act embodies Congress’s “plain intent . . . to halt and reverse the trend toward species extinction, whatever the cost.” 

The endangered species that NMFS sought to protect was the right whale. NMFS has implemented regulations to reduce right whale entanglements since the late 1990s. Despite these efforts, NMFS estimated in 2019 that there were no more than 368 right whales left in the ocean, with five of those suffering serious injury or death each year because of entanglement in commercial fishing gear. Entanglement at that rate, the First Circuit stated, will lead to extinction. Although the estimated reduction in risk of right whale mortalities attributable to the seasonal closure would be small – only 6.6% – the court concluded the closure was defensible as a “major, but not yet sufficient, step in reducing those deaths.”

The hastened demise of the right whale fits a disturbingly familiar pattern.  In The Unnatural History of the Sea, Callum Roberts has documented the serial depletion of the world’s marine stocks place by place and species by species from medieval times to the present day. Technological advances, proceeding hand in hand with the spread and vertical expansion of fishing grounds, have caused steady decline in species and populations and widespread damage to marine ecosystems. New Englanders, together with a growing international fleet, chased right whales to commercial extinction from the Grand Banks to Greenland and then turned, with faster boats and new technology, to other species farther afield, from the Arctic to the Southern Ocean.   

As a result of the international commercial whaling moratorium, the Endangered Species Act, and the Marine Mammal Protection Act, right whales have not been directly targeted since the 1980s. Right whales continue to die, however, as “by-kill” from lobstering and other commercial fishing activities. Ship strikes and other human interactions also continue to take a toll.  The minimal measures being implemented now likely will be too late and too few to save the right whale.

Nevertheless, President Biden’s recently issued proclamation restoring protections for the Northeast Canyons and Seamounts Marine National Monument does provide some hope, if not for right whales, then for other species, including sperm, fin and sei whales. Implementing a strategy successfully employed at the Papahānaumokuākea Marine National Monument since 2006, the Proclamation not only will protect endangered species against incidental taking as by-kill; ultimately, it will help to preserve and enhance an entire marine ecosystem populated by a diversity of species as small as corals and large as whales.