The North Atlantic right whale is critically endangered, with a population of fewer than 400 individuals.
Federal laws, including the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA), protect the right whale and require the government to consider and avoid harm to the species before taking actions that may affect them.
Entanglement with fishing gear is among the most common ways that right whales are harmed, so regulators cannot authorize fishing without first considering how much of a risk entanglement poses and adopting measures to avoid and minimize the frequency and severity of interactions between whales and fishing gear.
Disagreement about the effectiveness of these measures has recently resulted in challenges to the legality of the American lobster, Jonah crab, gillnet, and other fisheries in waters off New England.
In 2018, environmental plaintiffs responded to a 2017 “Unusual Mortality Event” by suing the National Marine Fisheries Service (NMFS) for violating the ESA. In August 2020, the court in Center for Biological Diversity v. Ross issued the latest in a series of rulings holding that NMFS did violate the ESA when it authorized the American lobster fishery. NMFS therefore was required to reconsider the effect of fishing on whales and issue new, legally-valid rules for the fishery based on its findings. If it failed to complete this process by May 31, 2021, the federal lobster fishery would be shut down.
This case has generated a high level of interest as it has inspired a narrative that places one of the nation’s most iconic fisheries at odds with one of its most recognizable endangered species.
In partnership with Maine Sea Grant, a Rhode Island Sea Grant Legal Fellow, with the assistance of Catherine Schluter, research attorney, and Read Porter, former senior staff attorney with the Rhode Island Sea Grant Legal Program, produced a fact sheet to provide information on the complex legal issues surrounding this topic. While both state and federal fishing regulators have been sued, this document only discusses litigation challenging federal fisheries.
“The goal is to assist fishing and other stakeholders in understanding the legal dispute associated with the recent (and ongoing) federal legislation affecting the lobster industry,” said Porter. “The fact sheet explains consultation and incidental take under the ESA, how it interacts with incidental take authorization under the MMPA, how the law applies to North Atlantic right whales and the current litigation, and what steps NMFS has taken in response to the court’s holding last year.”
This guide is a product of the Marine Affairs Institute at Roger Williams University School of Law and the Rhode Island Sea Grant Legal Program and was produced in partnership with Maine Sea Grant. Gabrielle Benjamin, Rhode Island Sea Grant Law Fellow, authored this fact sheet under the guidance of Read Porter, Senior Staff Attorney. All errors and omissions are the responsibility of the Marine Affairs Institute. This study is provided only for informational and educational purposes and is not legal advice.