Court Upholds Federal Action to Protect Right Whales From Deadly Entanglements in Lobster Gear

A right whale adult and calf near the water's surface

Photo: Brian Skerry

September 9, 2022 (BOSTON, MA) — A federal court has rejected a lobster industry attack on the science supporting recent federal efforts to protect critically endangered right whales from deadly entanglements in lobster gear. The industry sued the National Marine Fisheries Service, and the Center for Biological Diversity, Conservation Law Foundation, and Defenders of Wildlife intervened to defend the science.

“This decision rejects the lobster industry’s attempts to distract from the overwhelming scientific evidence that entanglements have killed far too many right whales for far too long,” said Erica Fuller, a senior attorney at Conservation Law Foundation. “It took the Fisheries Service five years to finalize a rule that only reduced lethal entanglement risk by 50% when the science shows 90% is needed. This species doesn’t have another five years to wait for the agency to comply with the law.”

The lobster industry argued that a biological opinion issued by the Fisheries Service in 2021 under the Endangered Species Act and a final rule issued under the Marine Mammal Protection Act overstate lobstering’s threats to right whales, resulting in overregulation. In Thursday’s ruling, the court rejected all of the industry’s arguments.

“We are pleased that the court deferred to the agency’s analysis of the best available science showing that lobster fishing is causing unsustainably high rates of right whale deaths and injuries,” said Jane Davenport, a senior attorney at Defenders of Wildlife. “However, for years the agency has deferred to the lobster industry’s demands for weaker fishing regulations. The Fisheries Service now needs to follow its own science and protect the right whale before the clock runs out on this iconic species’ survival.”

North Atlantic right whales are among the world’s most endangered animals, with fewer than 340 individuals alive today. Entanglement in fishing gear is one of the primary threats to the whales; the other major danger is collisions with vessels.

“This decision affirms that right whales can’t wait any longer for stronger protections from deadly entanglements in fishing gear,” said Kristen Monsell, oceans legal director at the Center for Biological Diversity. “The science has shown this for years, and it’s disappointing that the agency hasn’t taken more meaningful action, leaving the whales to suffer the consequences. The court’s latest ruling sends another powerful signal that the federal government needs to take bold action to save these critically endangered whales from extinction.”

When right whales become entangled in fishing gear, they can drown immediately or die over an extended period from injuries, infections or starvation. Chronic entanglements are also affecting right whale calving rates, pushing the species closer to extinction.

Thursday’s decision came about two months after conservation groups won a legal victory in their own case challenging the biological opinion and final rule for failing to do more to protect right whales from lobster gear entanglements, in violation of the Endangered Species Act and Marine Mammal Protection Act. The parties are in the middle of remedy briefing in that case.