A federal judge in Maine last weekend blocked a seasonal closure to traditional lobstering in part of the Gulf of Maine on grounds that the science used to justify the closure was flimsy at best. But scientists argue that the opposite is true, and federal officials have suggested that the judge’s ruling might not be the win for Maine’s lobster fishery that industry members think it is.

The hotly contested closure, which was slated to go into effect last Monday, would have banned traditional lobster fishing in a lucrative, 967-square-mile stretch of the Gulf of Maine for three months out of the year in an attempt to save the critically endangered North Atlantic right whales from extinction. 

Lobster industry professionals, elected officials and now a federal judge have expressed doubts as to whether the National Marine Fisheries Service used the best available science in imposing the closure, and whether the whales even frequent the area. They all argue that the statistical modeling used by federal regulators leaves much to be desired.

Sean Todd, a marine biologist and director of Allied Whale, a marine mammal research group located at the College of the Atlantic in Bar Harbor, disagrees with both the decision to block the closure and the claim that there are insufficient data to justify it.

But even if the data were lacking, Todd said, the judge’s ruling still goes against the well-established practice of precautionary management.

“If you don’t know the harm of what you’re doing, you don’t do it,” he said. “The situation is dire. We have less than 400 animals left and within that group of 400, there’s probably less than 100 available breeding females left. … Right now, we are, as a human society, killing more animals than the population can replace. Simply put, we’re doing this and we have to take every single action we can unless we want to be responsible for the extinction of the species.”

Mark Baumgartner, a marine biologist for the Woods Hole Oceanographic Institution in Massachusetts, said in an email that while he isn’t up to speed on the data used by the fisheries service, the scientific research he and others have done backs up the idea that not only do right whales visit the planned closure area regularly, but also that it is the only known breeding ground for right whales.

This image from Mark Baumgartner of the Woods Hole Oceanographic Institution is the result of a 2019-2020 winter survey in the Gulf of Maine. Red dots indicate positive acoustic detections of North Atlantic right whales, and yellow dots indicate possible detections. Courtesy of Mark Baumgartner/Woods Hole Oceanographic Institution

Baumgartner operates a winter survey in the Gulf of Maine with an autonomous vehicle known as a glider, he said, and they have detected the call of right whales in the closure area. Results of the 2019-2020 winter survey found at least 10 probable detections of right whales in the restricted area and at least 15 more possible detections, though Baumgartner noted he has less confidence in the possible ones.

The species has been on the brink of extinction before, most recently in 1992, when its population bottomed out at 295 whales. It rebounded to about 500 in 2010, but poor calving, ship strikes and fishing entanglements, especially in Canada, sent its numbers tumbling again.

Since 2017, a particularly deadly year for whales, regulators have recorded 34 right whale deaths – nine of those from entanglement in fishing gear. None of that gear has been linked to Maine, though a historic lack of state-specific gear marking has made it difficult to determine where many entanglements occurred.

The closure is a hotly contested part of a larger set of regulations issued in August by the National Oceanic and Atmospheric Administration aimed at reducing by at least 60 percent the right whales’ risk of dying from becoming entangled in fishing gear.

The recent ruling halts what scientists and environmentalists say was a crucial part of that process, and according to Allison Ferreira, NOAA spokesperson, it could also lead to an even worse outcome for the U.S. lobster industry than a seasonal closure.

“We are reviewing the Oct. 16 federal court ruling prohibiting the enforcement of the (restricted area) to protect North Atlantic right whales to determine next steps and to evaluate how it may impact our ability to authorize the lobster fishery,” Ferreira said in a statement.

Under the Endangered Species Act, all fisheries need to be authorized through a process that proves operation of the fishery will not jeopardize the continued existence of any species on the endangered species list. In this case, that’s the North Atlantic right whale.

“If for some reason we can’t prove what we call ‘no jeopardy,’ then technically the fishery can’t operate,” she said.

That said, NOAA’s plan as written anticipates a 69 percent risk reduction, and the Gulf of Maine closure is only responsible for about 6.6 percent of that.

BAD SCIENCE OR BAD RULING?

The Maine Lobstering Union, Fox Island Lobster Co. of Vinalhaven and Damon Family Lobster Co. of Stonington filed a joint lawsuit against the fisheries service last month in an effort to block the October-to-January seasonal closure, taking aim at the science behind it.

In his ruling, issued just two days before the closure would have been implemented, U.S. District Judge Lance Walker sided with the lobstering groups and said regulators had relied on “markedly thin” statistical modeling instead of hard evidence to prove the nearly thousand-square-mile area they had planned to close was really a highly traveled area for the imperiled whale.

He also noted that the agency’s approach “departs dramatically” from its past practice of justifying closures based on “known and predictable whale aggregations demonstrated by concrete evidence.”

Instead, he said, the “right whale density model” uses past sightings and information including the shape of the seabed, oceanographic factors such as currents, and known distributions of prey species.

While the area targeted for closure may be a viable habitat for the right whale, there is no hard proof the whales actually gather there, or even pass through that part of the Gulf of Maine, with enough frequency to render it a “hotspot,” Walker wrote.

The National Marine Fisheries Service had only just this year deployed acoustic devices along the Maine coast that can detect the presence of right whales through their song, Walker noted. When available, such evidence of the whales’ presence is preferable to statistical likelihoods.

“I find the certain economic harms that would result from allowing this closure to go into effect outweigh the uncertain and unknown benefits of closing some of the richest fishing grounds in Maine for three months based on a prediction it might be a hotspot for right whale(s),” he wrote.

But the fisheries service and marine biologists who study whales say the science used really is strong enough, and that the area has already proven itself to be a popular location among the whales. 

According to Amy Knowlton, senior scientist at The Anderson Cabot Center for Ocean Life at the New England Aquarium, keeping track of right whales is challenging and requires several different layers of information – including predictive modeling, which the fisheries service uses to determine where the whales might be. 

Scientists have, over the years, tried to tag the whales to track their movements, but such devices only last a few weeks at best and can cause physiological damage. A study of trackers used on blue whales showed that the tagged whales didn’t reproduce, which is the opposite of what’s needed to help the already low calving rate of the North Atlantic right whale.

So instead, they have to rely on historical and current sightings data and acoustic monitoring, among other techniques such as monitoring the currents and patterns of prey species. 

“It’s really the best we can do,” she said. 

Todd, the Allied Whale marine biologist, agreed.

Scientists can use visual sightings, aerial surveys, acoustic monitoring (though that assumes that the animals are within range of the monitors and vocalizing) to determine a sense of species distribution, and then collect different variables, such as water temperature and prey availability, to build up the statistical models.

In a perfect world, he said, scientists would have unlimited funding to track each and every whale, but they don’t. They have to pick and choose the methods available and prioritize what they think will give them the best picture.

“Is the (closure) decision based on weak data? I don’t think so,” he said. “It’s the best decision that can be made based on the data we have.”

Todd lamented how politicized the issue has become and said that without the pervasive skepticism of science, they would likely be getting more done to protect the whales.

“Politics don’t belong here,” he said. “The data are clear. What we need to do is clear.”

The lobster industry groups pushed for aerial surveys of the closure, such as those used to monitor another, dynamic closure in Cape Cod Bay.

However, according to Michael Asaro, an economist for the protected resources branch of the Northeast Fisheries Science Center and former marine mammal and sea turtle branch chief, the two aren’t really comparable.

“The goal of aerial surveys is to capture as many photographs of unique individual right whales as possible,” Asaro explained in written testimony in support of the fisheries service. “Because of unique markings on each right whale, scientists are able to identify whales individually, and this information is used to determine population abundance estimates (i.e., how many whales there are in the population).”

Asaro said the flights support researchers’ population estimate and are conducted regularly in areas where they would expect to find dense aggregations of right whales.

“The surveys are not conducted to confirm presence or to determine the geographical distribution of right whales,” he said.

Acoustic information is a more cost-effective way to determine if right whales are in an area, he said, and there are more than 20 years of data confirming their presence in the waters off the Maine coast – they just don’t congregate as densely as they do farther south.

In fact, he noted, there was a right whale sighted in Casco Bay on Sept. 16, and just four days later, a mother-and-calf pair was seen in the vicinity of the closure area.

Climate change will certainly play a part in the whales’ movement patterns in the future, which some opponents of the closure have pointed to as evidence that past sightings are not reliable indicators for the future, but Knowlton and Todd cautioned against assuming that the whales will stop using the gulf altogether.

ELECTED OFFICIALS WEIGH IN 

Maine’s top elected officials also have weighed in on Walker’s ruling and are urging the federal government to throw out and rewrite the new rules regulating Maine’s lobster fishery, calling the process “flawed and unfair.” 

In a letter sent Thursday to U.S. Commerce Secretary Gina Raimondo, U.S. Sens. Susan Collins and Angus King, U.S. Reps. Chellie Pingree and Jared Golden, and Gov. Janet Mills lauded Walker’s decision to block the closure and urged Raimondo to immediately resolve what they called the rule’s many shortcomings.

“Throughout the rulemaking process, we have raised concerns expressed by Maine’s lobstermen and other industry stakeholders about the flawed and incomplete data upon which the final rule ultimately relied,” they wrote. “(The fisheries service’s) decision to impose a sudden fisheries closure will cause irreparable harm to the industry, while doing little to achieve meaningful protections for the right whale population.”

Mills and the state’s congressional delegation said Walker’s decision to grant a temporary restraining area on the closure area underscores the many issues with the agency’s final rule. 

“We urge you to withdraw this rule and to use whatever authorities you have to immediately resolve the … restricted area component, which does not reflect the reality of the conditions in the Gulf of Maine,” they wrote.

The lobstering groups have argued that just because Maine is responsible for roughly 95 percent of the lines in the water, it does not mean it should be blamed for the problem when the data do not back up such an assertion.

The government estimates that 62 fishing boats set their traps in the proposed closure area, which is an area about two-thirds the size of Rhode Island about 30 miles off the coast of Maine, while another 62 boats fish near the closed area and would likely suffer from a reduced catch when the displaced fishermen are forced to set their traps someplace else. The government estimates each of these fishing boats will suffer a 5 to 10 percent loss in earnings.

But fishing groups and the state of Maine say the number of impacted fishing boats and resulting losses is most likely far higher, with as many as 200 boats displaced, and some of them losing as much as half their annual earnings. That is because many offshore Maine fishermen make most of their money fishing for top-dollar winter lobster, when the supply remains limited but holiday demand is high.