The U.S. First Circuit Court of Appeals has reinstated a 2024 NOAA Fisheries rule that annually closes a 200 square mile area off the Massachussets coast to lobstering between February and April each year.
A lower district court had previously rejected the 2024 rule, meant to protect the North Atlantic right whale, of which less than 400 individuals remain, from fishing entanglements during their migratory periods through Massachussets waters. This ruling from the First Circuit Court of Appeals, however, overturns that decision.
Three conservation groups, the Conservation Law Foundation, Defenders of Wildlife, and Whale and Dolphin Conservation, brought the appeal in May 2024. Jane Davenport, senior attorney for Defenders of Wildlife and the lawyer who argued the case on behalf of the conservation groups, called the decision a “majory victory for right whale conservation.”
Though the NOAA Fisheries had sought to protect the whales through seasonal closures of federal waters in 2015 and again in 2021, an error in the 2021 rule left the 200 square mile section open to lobstering during the whale migration period. When the mistake was discovered, NOAA Fisheries sought to correct it by using emergency rules in 2022 and 2023 to close the area. Next, the agency issued the 2024 rule, which was challenged by the Massachusetts Lobstermen’s Association and overturned by the district court.
The legal question at issue was whether the 2022 emergency rule closing the area had been in place when the federal Consolidated Appropriations Act of 2023 was enacted. The act included a regulatory pause on the lobster industry intended to ease the sector’s burdens during a period of challenge, but also required lobster fisheries to remain in compliance with the Endangered Species Act and Marine Mammal Protection Act through 31 December 2028. While the lower district court judge argued that the emergency rule was not in place when the Consolidated Appropriations Act was enacted in December 2023, the higher appearls court has now ruled that the NOAA Fisheries rule was in compliance with the Act.
Erica Fuller, senior counsel at the Conservation Law Foundation, said the 2022 rule error made the right whale situation more perilous.
“With seasonal closures on either side, [the contested waters] have become a gear parking lot littered with lines that threatened to entangle and harm right whales,” she explaind. “We’re pleased the First Circuit recongized that the 2024 rule, annually closing risky waters to vertical lines in the spring, is consistent with congressional intent to fix an inadvertent gap in protection of the Massachusetts coast.”
Though the issue of right whale regulations has long been a hot button one in lobstering communities, Maine authorities recently tried a less contentious approach to protecting the animals and the fishery. After learning that an unusually high number of whales were in the state’s southern waters, Maine Marine Resources Commissioner Patrick Keliher told lobstermen that it was in the fishery’s long term interest to avoid entanglements.
He urged lobstermen to remove traps set in greater than 300 feet of water, or, if they were unwilling to do that, to drop one endline from their traps to reduce the number of vertical lines in the area.
“Let me be clear, this is not mandatory; this would be a voluntary action on your part. However, failure of the industry to self-regulate your activity could be costly in the long run,” Keliher said in his message to the industry. “I urge fishermen to work together to reduce the amount of gear and endlines in the area in order to protect both the right whales, as well as the future of the Maine lobster fishery.”
“One entanglement will eventually lead to additional federal restrictions, including closed areas and limiting the use of traditional gear,” Kelihar continued.
Last year, a right whale which died by entanglement off the coast of Massachusetts was linked, for the first time, to Maine lobstering gear, and in early January 2025, the Commission for Environmental Cooperation (CEC), part of the United States-Mexico-Canada Agreement (USMCA), officially announced an investigation into alleged U.S. negligence around regulation enforcement meant to protect the whales.