Poster child for endangered marine mammals, the northern right whale epitomizes the high-stakes campaign to secure the coexistence of endangered species and the commercial fishing industry.

It’s a precarious balance. Fishermen who share the oceans with the right whale see a creature so rare that chances of snaring one in their gear are pretty remote. But environmentalists who seek to save this leviathan from the brink of extinction see a species reduced to 300 individuals, period, in the northwest Atlantic. So even the slightest chance of capture or injury is too much to risk.

These two constituencies have been parrying over the issue of fishing-related injury to marine mammals for decades, with Congress and the courts intervening to effect definitive action. The 1972 Marine Mammal Protection Act (MMPA) responded to public concerns about the impacts of human activities on marine mammals with a formal, uniform program of protection. The act declared a moratorium on any hunting, capturing, or "harassing" of marine mammals and charged the National Marine Fisheries Service (NMFS) with ensuring the moratorium via regulation. Over the years, reauthorizations and amendments further refined the act’s requirements.

The most recent amendments, in 1994, instituted an urgent regime to reduce harmful interactions between marine mammals and commercial fishing operations. This regime sets timetables and quotas for reducing serious injury and mortality of marine mammals; calls for stock assessments, along with estimates of acceptable "take" levels; and classifies fisheries according to their degree of interaction with marine mammals. It also mandates take reduction teams to develop plans for reducing marine mammal bycatch in specific fisheries.

The intensity of the requirements, and the pace of implementation, have put NMFS and fishermen alike in a crucible. "A year ago these guys [fishermen] were blindsided with almost being put out of business by something they had never seen–a whale entanglement," says Glen Salvador, NMFS outreach coordinator for the Large Whale Take Reduction Plan. "It was like telling someone a UFO is going to fly into your yard and get tangled in your wife’s clothesline." Nonetheless, fishermen were hearing that they would have to modify their gear and otherwise revise their fishing practices to reduce the likelihood of brushes with these protected species.

NMFS, for its part, was on the clock to develop regulations spelling out the alterations to gear and practices. The mandate from Congress was unequivocal – to bring down rates of human-caused death and serious injury to certain marine mammal stocks, initially to a level below each stock’s potential biological removal level (PBR), and ultimately–within five years–to "insignificant levels approaching zero."

PBR is the maximum number of animals that may be removed from a population without affecting its ability to reach or maintain its optimum sustainable population (OSP).1 NMFS calculates the PBR for strategic stocks according to a formula prescribed in the MMPA. These determinations then guide decisions about management measures for keeping incidental take levels within the MMPA parameters. But marine mammals are moving targets, and population surveys yield widely varying counts, depending on factors ranging from season and location of surveys to weather conditions.

However, survey data available at the outset of the take reduction effort "were never intended to be used" for formal stock assessments, explains Debra Palka, NMFS fisheries biologist. Those numbers were compromised by the limited geographic scope of the surveys and the difficulty of visually distinguishing certain marine mammal species from others in the same genus.

The need for more accurate population estimates under the 1994 amendments prompted large scale surveys covering the geographic range of the species to be counted, Palka says. Aerial and shipboard surveys from Florida to Nova Scotia, and probability and confidence factors plugged into population formulas, produced more realistic estimates.

But in the variations in "official" population figures fishermen found cause to question the data and the necessity for regulations stemming from them. "It’s hard to ask them to come up with a solution to a problem they don’t see," Salvadore says pointedly.

Kevin Chu, special assistant to the NMFS regional administrator, acknowledges that entanglements–particularly of right whales–are rare enough that fishermen "felt it wasn’t an issue. One right whale gets entangled every year: What are the chances it will happen in one of their lines?" He stresses, though, that any right whale entanglement is problematic, given the critically low numbers of these animals.

On the other hand, there are some protected species for which fishermen’s skepticism about the level of crisis may be justified. Stock assessments of the harbor porpoise, for example, have been widely disparate in recent years. Conceding that there are inconsistencies in assessments, Chu explains that newly published research, entanglement information, and other developments figure in the stock assessments each year, creating variations. He also points out that species vary in distribution and NMFS observers "can’t be everywhere" to count them, "so we take the best guess."

"Stock assessment numbers [for harbor porpoise] are going up, but we don’t know if the population is expanding or if distribution is changing," elaborates Joseph DeAlteris, Rhode Island Sea Grant fisheries and aquaculture specialist and URI fisheries, animal and veterinary science professor. "Increasing numbers could just mean we"re learning to count them better."

Because stock assessments that may be interpreted differently trigger application of the marine mammal protection law, there are some who argue that the law itself is flawed, says DeAlteris. Nevertheless, he adds, the law is the law, and "If the requirements of the law aren’t met, we could wind up with the courts managing the fishery instead of the fisheries service."

Legal Entanglement

Court intervention has been a recurring reality in the marine mammal conservation saga. It was the 1987 Kokechik Fishermen’s Association lawsuit that spurred the stringent requirements of the 1994 amendments to the MMPA. Earlier iterations of the act specified certain exemptions from the prohibition against incidental, or unintended, take of marine mammals. But the Kokechik case revealed that NMFS couldn’t adequately estimate OSP for many marine mammal stocks, therefore couldn’t determine the impact of various fisheries on those stocks, therefore couldn’t legally issue incidental take permits for those fisheries. To correct this deficiency, the 1994 amendments required annual stock assessment reports for all marine mammal stocks in U.S. waters. The reports were to include information about OSP and PBR as well as estimates of interactions between marine mammal stocks and domestic fisheries.

NMFS cooperated with the spirit of the law by producing the stock assessment reports and by convening take reduction teams to come up with strategies for reducing marine mammal bycatch without shutting out the fisheries. These teams, each dealing with marine mammal issues within specific fisheries and gear types, were composed of representatives from the affected fisheries and from NMFS, along with scientists, regulators, and conservationists. The law gave these teams six months to come to consensus on a take reduction strategy or else NMFS would step in with a plan of its own within 60 days.

Collaborative Solutions

Take reduction teams were written into the 1994 MMPA amendments as a vehicle for stakeholder input into marine mammal protection strategies. Of five teams established, four address fisheries in the Northeast. The Atlantic Large Whale Take Reduction Team deals with right, humpback, fin, and minke whales in the gillnet and lobster trap/pot fisheries from the Gulf of Maine to the mid- and south Atlantic. The Gulf of Maine Harbor Porpoise and the Mid-Atlantic Harbor Porpoise teams cover harbor porpoise bycatch in various gillnet fisheries. Addressing the take of several species of large and small whales and dolphins, the Atlantic Offshore Cetacean Team covers the Atlantic pelagic driftnet, longline, and pair trawl fisheries. (The pair trawl fishery was shut down while negotiations were in progress, but its representatives continued to participate.) The one West Coast team–the Pacific Offshore Cetacean Team–addresses large and small whale bycatch in the California/Oregon swordfish drift gillnet fishery. This team promptly delivered a draft take reduction plan, which NMFS adopted, and has since met its six-month goal of reducing incidental take below PBR.

The success of the Pacific team probably stems from team members" familiarity with the way NMFS determines quotas and, more to the point, the fairly healthy fisheries the process started with, suggests Nina Young, Center for Marine Conservation (CMC) research scientist. But for the Northeast teams, distrust of both motive and process evolved from what Young cites as a larger, underlying problem: "They’re losing their fisheries, so even the take reduction team is perceived as one more nail in the coffin."

With some urgency, then, fishermen pose the question, "How serious is the problem?"

They don’t necessarily trust stock assessments to answer the question. Longliner Nelson Beideman, Blue Water Fishermen’s Association executive director and a member of the Atlantic Offshore Cetacean Team, describes population surveys as too limited and localized to produce reasonable PBR levels. "They take the [numbers] from the survey, and then figure PBR using one risk-adverse computation on top of another risk-adverse computation on top of another." This approach applies the most conservative estimates for populations, Beideman says, and he has no quarrel with that. But he argues that computing one underestimation by another compounds the results to an unrealistic degree.

It’s a question of identification, decides Kate Wynne, an Alaska Sea Grant marine mammal specialist who has lent her research and technical experience to the East Coast take reduction effort. Some species–beaked whales, for example–are hard to differentiate from each other even up close on deck, never mind partially submerged in the water, she says. "If observers can’t tell species apart, they lump them together and apply the bycatch factor to both species to get a stock estimate." Estimates figured this way are "likely to be sufficiently conservative that regulators will close the fishery."

Although a point of contention, variable population figures couldn’t be allowed to derail the take reduction effort. "The information could be better," allows Erik Anderson, a gillnetter and N.H. Commercial Fishermen’s Association leader who participated on the Gulf of Maine team. "But that didn’t stop a group of people from trying to find a solution."

Anderson’s group had a history of finding solutions collaboratively. Modeled after the successful Harbor Porpoise Working Group in New England, the take reduction team also included a number of the working group’s members. The original ad hoc group of fishermen, scientists, environmentalists, and managers had voluntarily wrestled with both harbor porpoise bycatch and resolution-by-consensus for several years.

Counting on that familiarity with the issue and the process, NMFS launched the Gulf of Maine Harbor Porpoise Take Reduction Team as its first formal team. Faced with developing four plans at once in the Northeast, the agency "decided to start with one we felt we had a foundation for," says Doug Beach, NMFS Large Whale Take Reduction Team program coordinator.

Predictably, the groundwork of the original working group led the team to a familiar solution: "We went with a technological solution, which was pingers," Anderson reports. Pingers are devices that attach to gillnets and emit acoustical signals warning harbor porpoises away from the nets. "We had used them experimentally and in trials [through the working group], and we had started to reduce our takes."

The plan’s momentum stalled, however, under the weight of new information about harbor porpoise bycatch, the demands of other plans being developed at the same time, and the diversion of resources to ongoing lawsuits. But once the clock started, the process had to keep moving to the next deadline, notwithstanding data concerns, staff availability, or fragile consensus. As strategic stocks were identified and plans set in motion, NMFS scrambled to cover all its bases, and in the process overshot some deadlines.

Young has little patience for such glitches. She concedes that NMFS faced a learning curve with this consensus process, but declares, "To miss deadlines by over a year is totally uncalled for." Consequently, CMC and the Humane Society of the United States this summer filed suit against NMFS for its failure to implement the harbor porpoise plan by the initial deadline. Young explains, "When the environmental community and the fishing industry were negotiating [during development of the 1994 amendments], we felt fairly strongly that these deadlines had to be aggressive, because delays meant a couple thousand more harbor porpoise were going to die."

But Beach counters that measures in the harbor porpoise plan that were likely to have the most impact "were already being implemented by NMFS and fishery management councils. The closure was already in place, so there was some feeling that we were doing about all we could and that additional measures could wait," without dire consequences, until the legal ramifications of the large whale plan began to settle out.

Tenuous Consensus

The urgency of mortality prevention on one side and
the specter of court intercession on the other left take reduction teams vulnerable to a new problem. Pressured by timelines and sensitive to potential forfeiture of their decision-making power to NMFS should they fail to reach consensus, team members admittedly made concessions without necessarily reaching agreement. So, between delays in implementation and agency tinkering with recommended plans, their tenuous consensus fell apart.

Responding to the offshore cetacean team’s draft plan, NMFS presented "a suite of alternatives" for reducing marine mammal bycatch in the affected fisheries, says Laurie Allen, NMFS marine mammal and sea turtle program coordinator. The agency’s modifications of the plan arose out of information not available during the team’s deliberations and in light of developments regarding the northern right whale. Because right whales were included in the offshore cetacean plan as well as the large whale plan, court-ordered provisions for right whale protection impacted both plans.

Beideman has less quarrel with the content changes of his team’s plan–’some of what NMFS has is better"– than with NMFS’s unilateral authority over a mandated consensus product. "The whole point of the team is, if you have consensus that meets legal parameters, NMFS is pretty much bound to the plan."

Not necessarily, according to Beach. "The MMPA never envisioned that the team’s plan would automatically become the agency’s plan." He describes the team’s relationship to NMFS as advisory, explaining that NMFS "takes what the team gives us and determines what can and can’t be done" within the boundaries of the act and other regulatory factors influencing the fisheries.

"Other" influences include not just the courts, as in the right whale plan, but also fishery management councils, as in the harbor porpoise plan. Even so, teams were disheartened to have their hard-won consensus overruled. CMC’s Young openly protests that "what NMFS chose to do in the final analysis was far weaker than what the fishing industry was willing to adopt."

Non-duplicative rather than "weaker," Beach suggests. Gulf of Maine fishermen, for example, acceded to closures as the primary mechanism for reducing harbor porpoise bycatch. But adding these closures to those already imposed or proposed to reduce groundfishing effort under Amendment 7 of the Magnuson Act "would have double hit the fishermen." Beach reasons that restricted fishing reduces harbor porpoise bycatch whether restrictions are aimed at reducing fishing effort or protecting marine mammals. Therefore, closures can overlap without detrimental impact on the PBR level.

In addition to the impact of other management regimes on the harbor porpoise take reduction process, NMFS considered the fact that the mid-Atlantic and the Gulf of Maine teams were dealing with the same species and working with similar PBR levels. It became clear, Beach says, that "to effectively manage the whole thing, you really had to combine the plans and allocate bycatch between the two fisheries so that one doesn’t get shut out by the other’s overcatch."

So that’s what happened. In late summer, NMFS published an "overall" harbor porpoise plan as a proposed rule. Allen says the new plan retains much of the geographic and strategic integrity of both previous plans.

"It’s a complex plan," she acknowledges, "but there shouldn’t be any surprises." Much of the plan continues or expands upon existing practices of local fishermen and extends those practices to anyone coming into the area to fish.

Time/area closures still figure in the recommendations: Allen confirms that the plan takes into account impacts of Amendment 7 and the year-to-year redistribution of harbor porpoise populations as well as the redistribution of fishing effort that tends to occur with "small-area" closures. "When you impose closures on discrete areas," she elaborates, "fishermen fish elsewhere. What we"ve seen in the data is that bycatch is happening outside the closure areas." The new plan promotes pingers and other gear modifications to control bycatch in these open areas.

Fishermen as Resource

Getting the plan from paper to practice has been an outreach marathon. It was clear from public hearings on the large whale draft plan in late 1997 that fishermen were not going to accept any plan out of hand, observes Chris Findlayson, assistant to the commissioner, Maine Division of Marine Resources (DMR). When NMFS presented its revised proposed rule for public comment, the reaction was "uniformly negative," he says. "More than 3,000 people showed up at the meetings in Maine, and people were turned away at the door."

This was not quite the "stakeholder participation" the 1994 MMPA amendments envisioned. But NMFS was bound to cultivate fishing industry acceptance of the pla because, as biologist Chu points out, aspects of the plan are hard to regulate,
and "we have to rely on their cooperation."

Cooperation here means more than passive adherence to regulations. Fishermen have a potential role as active participants in identification, tracking, and disentanglement of protected marine mammals.

"Fishermen represent a tremendous asset for data collection and in-the-field protection for large whales," Findlayson asserts. "It’s been our contention all along that fishermen are the key to the solution."

However, there have been a couple of obstacles to harnessing this potential resource: one, fishermen’s skepticism about the extent of the problem, and two, concern that frequent reports of entanglements will implicate the fisheries and prompt shutdowns.

Indeed, the prospect of "wrongly stigmatized" fisheries, in Findlayson’s words, was one of the flash points of take reduction plans. Regulators proposed gear marking as a way to determine what fisheries "caused" entanglements in order to address specific problems. But, as Findlayson and DeAlteris both note, assigning injury or mortality can be difficult because animals can carry gear around for years before succumbing to injuries from it. Further, they’re as likely to have trouble with lost gear as with actively fished gear.

DeAlteris hastens to point out, however, that, "Entanglement doesn’t necessarily mean mortality. What we’re trying to do is build cooperation with the fishing industry, so if an entanglement occurs, we can work together to prevent mortality."

Part of the deal is keeping track of the whales. If fishermen record sightings, then, "Instead of pulling up all the gear during "whale season," we track the whales so we can learn where they’re interacting with gear," says DeAlteris.

The first step is knowing what to look for. "Most fishermen will go their entire professional lives without seeing a [right] whale," Findlayson observes. "So they need training to look for unusual behavior that may indicate a whale is entangled." And then they need to know what to do about it.

DeAlteris, who was involved with three take reduction teams, offered Sea Grant’s outreach expertise and, with funding from NMFS, expedited this part of the take reduction program. Rhode Island and Maine Sea Grant programs churned out identification and distribution guides ranging from fact sheets and brochures to the ambitious Guide to Marine Mammals and Turtles of the U.S. Atlantic and Gulf of Mexico and an information and instruction video. Wynne contributed substantial writing and technical assistance to these East Coast projects.

The materials, handed out liberally at zone council meetings, co-ops, libraries, and other venues where fishermen might be reached, laid a foundation of information. Then came the real work: changing attitudes. And that had to happen face to face.

Last winter, DeAlteris hit the road with David Beutel, James Guimond, and Neil Thompson, Rhode Island Sea Grant research assistants, to catch up with fishermen at trade shows along the East Coast. Through workshops and informal exchanges, they explained the take reduction program, talked about gear requirements, and answered specific questions.

More targeted efforts have been under way in Maine, where fishermen are undergoing formal training in identification and response. Glen Salvadore, a fisherman, fishery observer, and gear technology expert before becoming outreach coordinator for the Large Whale Take Reduction Plan, has hit fishing communities up and down the Maine coast to prepare fishermen for practical response to whale entanglement.

Because Maine’s fishing industry had been so vocal in its objections to the take reduction plan, "A lot of people thought, "These guys aren’t going to turn up at the meetings,"" Salvadore says. Yet, not only did encouraging numbers show up for each session, but half of these signed up for more advanced training as well. Level I training focuses on identification, indications of entanglement, and protocol for alerting the Coast Guard or disentanglement team. Level II takes fishermen aboard a Coast Guard vessel to spot and follow whales and learn more about their biology and habits.

Salvadore likens the training to a CPR course: "We may never run into anybody having a heart attack, but if we do, we’ll know what to do."

Standing By

The Center for Coastal Studies (CCS) in Provincetown, Mass.–the agency authorized by NMFS to handle disentanglements–started putting together a response network a couple of years ago as increasing reports from whale-watching boats signaled heightened public awareness of entanglement problems, according to David Matilla, CCS senior scientist. About that time, the Large Whale Take Reduction Team was pondering solutions ranging from closures to gear modifications to disentanglement capability, Matilla says. "The one thing everybody could agree on was the need to improve abilities to find entangled whales, report them quickly, and work to free them."

Herein lies the fishing industry’s vital contribution. Matilla notes that a fisherman’s reported sighting of a right whale "at least lets us know [the whales] are there." Further, the fisherman’s account of an entanglement–what kind of gear and how, when, and where the whale struck it–provides crucial information, both immediately for disentanglement strategy and longer term for management options.

"Nobody really has a clear handle on how these entanglements are happening," Salvadore interjects. Do whales get caught mostly in gillnets? In buoy lines? Mostly when feeding? Are they caught by the mouth? The flippers? The tail? "If fishermen have information on how whales do get entangled, they can come up with good ideas for solutions."

Among potential solutions are "weak links" that break at a certain pressure, sinking ground lines, and breakaway lines that "give" to a whale’s locomotion but not to a storm wave. But because of economic considerations, and because what works in Cape Cod Bay or Rhode Island Sound may not work in Down East Maine, gear technologies proposed in take reduction plans are still evolving.

Until the mechanics of entanglement are pinned down and gear and fishing practices modified so that interactions are truly minimal, the best hope is to free the animal to prevent its death. However, "Technically and legally, fishermen are not allowed to do this," cautions Matilla. Disentanglement requires infringing on the mandated 500-yard buffer area and stopping the whale’s swimming, both of which violate the MMPA, he explains. Even if a fisherman can get close enough to cut away gear so the whale doesn’t drown, an injured animal may thrash and swim away with lines still attached. The gear can interfere with the whale’s movement or feeding, or can cut into flesh and bone, causing potentially fatal infection.

However, the danger is rarely immediate, Matilla assures. So the fisherman’s primary contribution, beyond a call to the Coast Guard or the disentanglement hot line, may be, simply, waiting.

"Standing by is probably the most important thing these guys do," Salvadore states. "If they call in an entanglement at such and such a spot and then leave, chances that the whale will still be there when the team arrives are not good."

Of course, a fisherman who is standing by an entangled whale isn’t fishing, acknowledges Terry Stockwell, Maine DMR area manager. So it takes real commitment to assume this responsibility. Stockwell asserts that the turnout at Salvadore’s training sessions demonstrates the fishing industry’s commitment. In conjunction with the Coast Guard and the "first responders" trained through a pilot program run by Bob Bowman, CCS Maine project director, these committed souls have put together "a pretty good response network.

"It’s a real small-step process," Stockwell continues, noting that this buy-in has been cultivated through outreach to zone councils and fishermen’s wives groups and discussions on the docks. Reactions that initially ran to "Get off my boat" are now as likely to be, "How can I help?"

"We’re not really asking these guys to alter their fishing style, just to pay attention," he says. "Some tell us to kiss off. And that’s okay. We don’t need everybody; we just need some good guys to pay attention."

Colliding Behemoths

Fishermen have been taking a lot of heat for marine mammal mortalities, but they are not solely responsible for these encounters. Last March, a rare blue whale discovered off Newport, R.I., sustained a broken jaw and fin "possibly suffered when the whale crossed paths with a 485-foot tanker," says Amy Knowlton, New England Aquarium research scientist. It’s uncertain whether this whale was killed by the collision or whether it was already dead when the ship struck it. What is certain is that ship strikes have been responsible for half the known right whale deaths in the U.S. Atlantic since 1990.

Because right whales feed and rest in coastal areas, their habitat lies smack in harm’s way of shipping traffic. But because whales migrate seasonally, rerouting traffic around them doesn’t necessarily solve the problem. "We don’t know where a lot of the population goes during the winter months," Knowlton explains. "Except for calving females–which winter in the coastal waters of Georgia and Florida–these whales are pretty much out of sight." Besides, she adds, "Nobody wants to see shipping slowed down, because there are economic impacts to industry."

So the response for now is voluntary surveillance and avoidance. Early warning systems operating in both the Southeast and Northeast critical habitats of right whales relay information from aerial and shipboard surveys to commercial and military vessels as a warning to steer clear or proceed with caution.

The Navy, Coast Guard, NMFS, the National Oceanic and Atmospheric Administration (NOAA), and New England Aquarium, among others, work together to alert mariners to the location and course of any right whales sighted. Knowlton says the team flies "every day the weather permits." If ships are approaching areas of whale activity, the early warning system contacts the ship directly with the animals" coordinates. If whales are spotted in an area where no ships are traveling, a general advisory goes out.

This case-by-case warning and avoidance system runs into problems with nighttime or out-of-season occurrences, which surveillance doesn’t cover. Bridging that gap involves educating mariners about whale behavior, distribution, and migration patterns, so they can take steps to prevent collisions. Anything more formal–such as policies to reroute shipping out of critical habitats–would have to be an international initiative, Knowlton says. "There’s been a lot of headway in recent years on the education front," she adds. "Hopefully regulatory progress will follow."

Small Steps

Large vessels and fishing boats share responsibility for both the marine mammal mortality problem and the solution. The first steps have now been taken. "First, we had to get their attention," says DeAlteris. From there, small steps have led to acknowledgment, acceptance, participation, and practical progress.

Findlayson expresses satisfaction with the evolution of over-all plans and practices to reduce injuries to large mammals. "But you don’t solve this problem in one fell swoop," he acknowledges. "We progress by learning and doing. What we have to do is, one, minimize the chances of entanglement, and two, minimize damage to the animal if entanglement does occur." Reflectively, he concludes, "We can always get better at both."