Must We Choose - North Atlantic Right Whales or Lobster Fisherman?

Essay. Industry versus the environment or a false dichotomy? Is there a middle way?

Author”s Note: this is a follow up to my previous article on lobster fishing. It is an depth discussion of the conservation issues and livelihoods.

Entangled North Atlantic Right Whale (Wikimedia, Public Domain)

A gaggle of boats is two miles away. They are whale-watching boats ferrying the tourists to the waters off Cape Cod, where the whales feed for the summer. They hope to see humpbacks and hope beyond reason to see the endangered North Atlantic Right whales.

We are sailing past the boats. The sight of the gaggle tempts us to turn to port and join the watch party, but the experience seems contrived, so we stay the course to Bar Harbor, Maine, two hundred miles away.

Then, a spout and an exhale. Distinct, powerful, close to us, only a few hundred feet away. A majestic tale lifts out of the water, curls, and slaps the waves in repeated blows. One after another, the slaps crash tonnes of flash against the water in intimidating display, or welcoming, playful, or seductive. For an entire minute, slap after slap. Mesmerizing.

I hope it is the North Atlantic Right Whale, but they are so rare that I know it is not even before I confirm we are watching a humpback.

North Atlantic Right Whales were hunted near extinction in the 18th and 19th centuries. Their plummeting numbers landed them on the Endangered Species list over fifty years ago. Between 392 and 433 individuals live between Florida and the Canadian Maritimes (Pettit et al., 2018). Their numbers recovered from about 100 individuals at the lowest point, but now the mortality exceeds the replacement rate again. If the death trajectory continues, the whales will be headed for extinction within decades.

Entanglement with lobster fishing gear and ship strikes are the two leading causes of mortality. Our appetite for lobster tails and things from distant parts of the world is killing the species.

We enter the lobster fields two hundred miles later, deep in the Gulf of Maine. As if someone spilled a colossal bag of Skittles over the ocean, the surface is colored by a rainbow of dots, each a buoy marking the lobster traps below. The density is overwhelming from a distance, yet when closer, there is space for our forty-foot boat to sail through the lobster field with occasional corrections.

Lobster fishing is a 400-year-old industry in Maine, with the first official lobster landing recorded in 1605. Native Americans harvested lobsters earlier to bait their fish hooks and use them as field fertilizer.

During colonial times, lobster was abundant and considered “poverty food” for prisoners and indentured servants. It was harvested by hand near the shoreline. By mid-1800, the demand grew with the growing population in Boston and New York. Commercial fishing began using smacks — sailboats with live water wells. Modern fishing vessels share this feature. They must, the regulations stipulate the lobster must be alive when landed onshore.

Today, somewhere between 4100 and 5600 active lobstermen operate in Maine. About 20 percent fish year-round. In the winter, the lobster migrates to deeper and warmer waters, and lobstermen must follow it offshore beyond the three-mile line. These are federal waters and require a federal license and a Maine lobster license.

The industry is facing challenges and a possible demise. The problems are both immediate and long-term. The cost of fuel has shot up since the late nineties and oscillated since. The cost of the lobster boats went from around $125,000 at the turn of the century to $400,000 by 2020. The bait prices skyrocketed with the decrease in herring hauls — herring is the primary lobster bait. The herring migrated away from the near shores because of warming waters, and the government placed restrictions on catches to allow the overfished species to recover. Then, the pandemic killed the demand for lobster. Although it has since recovered, the lull dug a hole in incomes. But the big threat to the lobstermen is the North Atlantic Right Whale conservation.

A 2019 study (M.J. Moore et al., 2019) investigated 70 known cases of Right Whale deaths between Florida and The Bay of St. Lawrence. In 43 cases, the team could determine the cause. In 22 cases (57.9%), the whales died from entanglement. In 16 cases (42.1%), the whales died from vessel strikes. An earlier study covering the 1970–2002 period saw the prevalence of entanglement increase from 21% to 51%, although the absolute numbers are unclear. Thus, a decrease in ship strikes could increase the entanglement percentage.

Whales with visible scars from vessel strikes (NOAA, Public Domain)

But the problem for lobsterman started much earlier. In 1996, Max Strahan sued the Commonwealth of Massachusetts under the Endangered Species Act to prevent whale deaths from lobster gear. He won the case.

His full name is Richard Maximus “Max” Strahan. But he goes by Max, or “Mad Max” to some or a self-proclaimed Prince of Whales. He is controversial and abrasive, with missing front teeth, wild hair, and a singular focus on saving the Right Whales. He sees his motives as pure, but opponents and allies call his tactics dubious and, at times, counter-productive. He alienated both the lobstermen, calling them “the rapists of the sea” (Boston Globe, 2019), and environmental groups who he dismissed as WINGOs (Whale-Interested NGOs). But he undoubtedly got results and spawned parallel efforts from credible environment groups driving successively stringent regulations in just as litigious, if less brash manner.

Following the 1996 court case, the judge ordered NMFS to organize a group of conservationists, academics, and industry representatives to develop and implement regulations to mitigate the risk to whales. After one year of work, The Atlantic Large Whale Take Reduction Team (ALWTRT) proposed the mitigation measures in 1997.

Disentanglement team assisting the whale (NOAA, Public Domain)

The new regulations focused on minimizing the chance of entanglement: fewer vertical lines in the water and seasonal closures of fisheries in the known feeding areas. They banned fishing with only one trap per line, required lines to sink to the bottom, and mandated a weak link in the line to break at 600 pounds of force in case of entanglement. The regulations also prescribed the formation of disentanglement teams. (Acheson 2003).

The regulations made an impact. The whale mortality decreased every year since the successive round of regulations came into play. But in 2017, in a devastating setback to both conservationists and lobstermen, seventeen whales died. The causes of mortality were entanglements, ship strikes, and a case of predation. Why the numbers spiked in a single year is a mystery. The mass mortality of 2017 and the follow up documentary Entangled brought the public attention back to the whales, and placed the lobsterman in crosshairs.

The mass death event launched the new wave of lawsuits to either permanently shutdown the lobster fishery, or impose a new set of regulations to eliminate the whale death.

What is the perspective of the lobsterman?

Last August, I worked on a lobster boat. Jim is the captain and a life-long lobster fisherman. Jim is past his forties, maybe past his fifties. Grey beard, short and well-kept, weathered face of a seaman. He fished most of his life. After an accident at seventeen left him without a use of the left arm, he abandoned fishing to study accounting. But a corporate stint after college did not sit well with him. He worked to regain the use of his arm, and once able, he moved back to Maine to fish. He now lives in Bar Harbor.

Author is working as a deckhand for a day (Photo by author)

I met him and Joe, his sternman in Bass Harbor, Maine at 4 am, and we headed out offshore to check the lobster traps. I worked as a deck hand and we talked about lobster fishing and the challenges that face the industry.

The industry is unique in New England. There are no powerful fishing corporations with interest at stake. The law requires Maine lobstermen to be small, self-employed businesses that own and operate their own boat. They must live and work locally. Only a limited number of new licenses are granted which results in a waiting period of years, different number for various zones.

Each licensed lobsterman is limited to 1,200 traps by federal regulations, but in Maine the fisherman limited themselves to 800. It makes sense. Decreasing the number of traps, increases the number of landings per trap, with the total number of annual landings for each fisherman staying the same. But with fewer traps, less line and bait, and less fuel to drive between the fields, they can make the same or more money. Lobsterman arrived to this conclusions in 1990, and recent studies from the University of Maine Lobster Institute (Acheson, 2003) and from elsewhere (Mayers and Moore, 2020) confirmed the intuition.

Jim says that the fishermen are responsible, focus on sustainability, and are not blind to the plight of the whales. To him, the choice between lobster fishing or whales is a false dichotomy. It is also wrong to pit environmental groups and lobstermen as enemies, they both are conservationists, and lobstermen see the preservation of the Right Whales as an imperative. The argument is over the methods, some conservationists want to abolish lobster fishing, fishermen want to mitigate the risks.

Jim is deeply involved and understand the issues. He is a treasurer at the Lobster Institute at University of Maine, where he also consults. And he is the treasurer of the Maine Lobsterman’s Association, the industry group representing the fishermen.

Jim represents a pragmatic camp of lobstermen. They understand the laws and the necessity to cooperate. They want to affect the regulations to minimize the “accidental take”, the official terms for whale death from fishing gear, without inflicting a disproportionate financial burden on the lobstermen. They understand there will be cost of gear replacement and from the lost income during the fisheries closures during the whale feeding season in New England. This group has been a key factor in the TRT — the Take Reduction Task force, the group of conservationists, lobstermen, and scientists assembled by a court order to find a path to save the whales without killing the fishing industry.

The other camp is “fuck the whales” vocal resistance contingent. They are a minority. Although, some believe, they are the silent majority, with many lobstermen unwilling to speak their minds for fear of retribution and directed lawsuits.

The pragmatists do not view “fuck the whales” group kindly. They consider their behavior counterproductive and irrational in the face of the law. In turn, the resistance contingent looks at pragmatists with suspicion.

They share one grievance: both believe the New England lobster industry has been singled out unfairly. They point to the 40% mortality caused by vessel strikes and ask why there are fewer efforts to mitigate the cause. They also point to Canada where most of the death occurred since 2015, but where the regulations to protect the whales were essentially non-existent. Both points are not without foundation, although they no longer carry the same punch.

Since the mass mortality event in 2017 NOAA and the National Marine Fisheries Service (NMFS) introduced new speed restrictions on commercial vessels while in whale habitats. They also stepped up the speed enforcement with aircraft. The measures decreased the vessel strikes. The fortunate drop in number of strikes elevated the percentage of entanglement events, without an increase in the absolute number of entanglements. The change in percentage statistics put the lobster industry in a worse light, which fishermen think is unwarranted.

The lack of restrictive regulations in Canada was another problem. It contributed to the high mortality rate in whales. It also put the New England fishermen at an economic disadvantage. They had to compete with cheaper lobster from Canada where the fishermen did not incur the costs of compliance with the regulations.

Canada claimed the regulations were unnecessary in the past as the northern reaches of the Bay of St. Lawrence were not traditional whale habitats. It was true in the past, but the climate change altered that reality. The Gulf of Maine is warming faster than 95% of the ocean. The increase in water temperature pushed the copepods, a tiny crustacean and right whales primary food source, into colder Canadian waters. The whales followed.

The New England fisherman appealed to the US government to intervene on their behalf. Then secretary of state, Wilbur Ross, applied pressure to the Canadians, including a threat of tariffs, which led them to adapt a set of rules similar to New England. This evened the playing field but the impact on the whale conservation is still unclear. The mortality dropped after the crises years following 2017. It is a hopeful sign but the Canadian government took that as a sign of success and rolled back some regulations including a drop on vessel speed restrictions in some zones. This is a cause for worry.

In the last few years both the conservation efforts and litigation continued with each side claiming victories and setbacks. The resolution to the deadlock last year, hinged on the outcome of the Chevron decision litigated before the Supreme Court in the most recent term. The Chevron doctrine empowered the agency experts to issue binding decisions in case where the low was unclear. The agency experts in the recent past sided with the endangered species and conservationists. The fishing industry rebelled against the agency’s power demanding a litigation by a jury.

Just days ago, the conservative Supreme Court ruled against the Chevron doctrine, in an ironic reversal of the originally conservative idea. What that means exactly is hard to say for the fight between conservationist and fisherman, but the sentiment is that it is a victory for the lobstermen, a setback for conservationists, and a calamity for the whales.

We are sailing back to Maine as I write this. I stand up on my watch to stretch my legs, take the binoculars from the helm station and scan the North Atlantic waters. In the vastness of the ocean a chance of spotting a a whale spout is small, spotting the spout of the North Atlantic Right Whale is vanishingly so. I suspect I will not see one this year. And I fear that in a few decades, no one will again.