Case 1:21-cv-02509 Document 1 Filed 09/27/21 Page 1 of 32
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`MAINE LOBSTERMEN’S ASSOCIATION,
`INC.
`2 Storer St., Suite 203
`Kennebunk, ME 04043
`
`Case No.: 1:21-cv-2509
`
`Plaintiff,
`
`v.
`
`NATIONAL MARINE FISHERIES SERVICE
`1315 East-West Highway
`Silver Spring, MD 20910
`
`GINA RAIMONDO, in her official capacity
`as Secretary of Commerce,
`United States Department of Commerce
`1401 Constitution Avenue, NW
`Washington, D.C. 20230
`
`JANET COIT,
`in her official capacity as
`Assistant Administrator for Fisheries,
`National Marine Fisheries Service
`1315 East-West Highway
`Silver Spring, MD 20910
`
`Defendants.
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`I. INTRODUCTION
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`1.
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`The Maine lobster fishery is essential to Maine’s culture, heritage, and economy.
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`For more than 175 years, the fishery has supported communities and generations of families in
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`Maine, while ensuring that this important natural resource is sustainably harvested for
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`generations to come. This conscientious stewardship has been undeniably successful—the Maine
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`Case 1:21-cv-02509 Document 1 Filed 09/27/21 Page 2 of 32
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`lobster stock continues to thrive at healthy levels and the fishery remains one of the most
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`valuable in the United States.
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`2.
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`Despite being a model for sustainability success, the Maine lobster fishery itself is
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`now endangered as a result of a misguided federal decision that is directly at odds with both the
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`best available science and ecological knowledge gained from the experience of fishermen.
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`3.
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`Specifically, in 2021, the National Marine Fisheries Service (“NMFS”) issued a
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`biological opinion (the “2021 BiOp”), pursuant to the Endangered Species Act (“ESA”), that
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`evaluates the impacts of multiple fishery management plans (including for the Maine lobster
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`fishery) on the North Atlantic right whale. Through a “Conservation Framework,” the 2021
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`BiOp mandates that U.S. fixed gear fisheries (including the Maine lobster fishery) implement
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`more conservation measures to achieve an additional 98% reduction in the incidence of “serious
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`injury and mortality” interactions between this fishing gear and North Atlantic right whales over
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`the next 10 years.
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`4.
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`NMFS’s mandate ignores the reality that the Maine lobster fishery already has an
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`extremely low incidence of interactions with right whales due, in part, to a suite of mitigation
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`measures that have been implemented for many years. Reducing its already low impact by
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`another 98% is not possible without driving most of Maine’s harvesters out of business
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`permanently.
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`5.
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`Should NMFS’s draconian mandate be imposed, the Maine lobster fishery will
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`not exist as we know it today and the opportunity for future generations to continue this proud
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`heritage will be lost. Lives and livelihoods will be uprooted, and a cultural tradition that has
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`existed for more than 175 years will be gone. To make matters worse, these tragic losses will be
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`for naught. NMFS will have accomplished no meaningful benefit to the North Atlantic right
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`whale because, as reflected in its 2021 BiOp and discussed below, NMFS failed to forthrightly
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`address the most significant causes of harm to North Atlantic right whales or to apply the best
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`available science.
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`6.
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`Even though it is now being unjustifiably targeted by NMFS, the Maine lobster
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`fishery has long embraced, and continues to embrace, a strong desire to conserve and coexist
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`with the North Atlantic right whale. Indeed, the fishery has implemented measures over the past
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`two decades to reduce the risk it posed to North Atlantic right whales, including drastic
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`reductions in vertical lines, gear modifications, and effort reductions. These actions have come at
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`no small cost to lobstermen and were implemented with extremely high compliance by
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`lobstermen. And they have undeniably been successful as there has not been a single known
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`North Atlantic right whale entanglement with Maine lobster gear in almost two decades.
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`Moreover, there has never been a known North Atlantic right whale serious injury or mortality
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`interaction associated with Maine lobster gear.
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`7.
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`Critically important new scientific information about right whale migration
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`patterns shows that the Maine lobster fishery will continue to pose very little risk to North
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`Atlantic right whales. Numerous independent scientists have demonstrated that changes in the
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`oceanic environment have pushed the migration path of right whales out of the Western Gulf of
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`Maine and squarely into heavily used waters in Canada—where whales feed and are routinely
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`entangled in snow crab fishing gear and struck by vessels, and where conservation measures
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`have lagged far behind those implemented in the Maine lobster fishery. This new information
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`establishes that North Atlantic right whales seldom migrate to, and even more rarely aggregate or
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`feed in, Maine’s commercial lobster fishing areas.
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`8.
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`The 2021 BiOp is divorced from this reality. It is premised on the single
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`erroneous assumption that all fishing rope presents equally deadly risk to North Atlantic right
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`whales and, therefore, all rope must be eliminated regardless of what the best available
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`information actually shows about the relative risks to right whales. When operating upon this
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`false premise, the Maine lobster fishery becomes an easy regulatory target for NMFS because it
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`is the largest U.S. fishery addressed by the 2021 BiOp and, as such, has the most rope in the
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`water.
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`9.
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`Because the 2021 BiOp is based on the simplistic and false premise that more
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`lobster rope in the water equals more risk to whales—regardless of gear type, location,
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`configuration, presence of weak insertions, other mitigation measures, oceanographic conditions,
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`and whale behavior and distribution—it exaggerates and arbitrarily inflates the risk posed by the
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`Maine lobster fishery. Even worse, NMFS erroneously attributes impacts to the Maine lobster
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`fishery that are, in fact, caused by other fisheries (such as the Canadian snow crab fishery) or by
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`non-fishing vessels that are well-known to strike and kill North Atlantic right whales. NMFS
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`relies on these demonstrably incorrect assumptions and attributions to justify its plan to squeeze
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`the fishery down to reach an artificially derived risk reduction factor of 98%.
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`10.
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`Unfortunately, these punishing measures will provide no appreciable benefit for
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`the North Atlantic right whale while at the same time decimating the Maine lobster fishery.
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`Eliminating the Maine lobster fishery will not end right whale deaths in Canada or vessel strikes.
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`The 2021 BiOp truly accomplishes a “lose-lose” situation for whales and the lobster fishery. This
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`regrettable result is the quintessential example of unlawful agency decision-making that long ago
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`caused the Supreme Court to admonish federal agencies to adhere to the ESA’s “best available
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`science” requirement in order to “avoid needless economic dislocation produced by agency
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`officials zealously but unintelligently pursuing their environmental objectives.” Bennett v. Spear,
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`520 U.S. 154, 176-77 (1997).
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`11.
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`The Maine Lobstermen’s Association, Inc. (“MLA”) is dedicated to the
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`preservation of a sustainable lobster resource, and to the fishermen and communities that depend
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`on the Maine lobster fishery. MLA has proactively worked to develop, and consistently
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`supported, conservation measures for the North Atlantic right whale based on sound science.
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`But, as described above and in the allegations that follow, the 2021 BiOp is neither sound
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`science nor lawful. The 2021 BiOp’s failure to identify, present, and apply the best available
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`science to its assessment of the North Atlantic right whale unfairly and arbitrarily places useless
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`conservation burdens on the Maine lobster fishery.
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`12. MLA brings this lawsuit because NMFS’s imposition of draconian measures on
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`the Maine lobster fishery will not halt the decline of the North Atlantic right whale while
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`simultaneously resulting in a devastating economic hardship on the more than 4,800 individually
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`owned and operated lobster fishing vessels and the tens of thousands of jobs they support, all of
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`which are essential to Maine’s economy and irreplaceable aspects of the State’s coastal and
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`maritime heritage.
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`13.
`
`Defendants’ approval of the 2021 BiOp is unlawful because NMFS did not rely
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`on the best available scientific information, made erroneous and arbitrary assumptions
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`unsupported and contradicted by data and evidence, relied on an outdated and flawed
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`methodology to model projections of the North Atlantic right whale population, and inexplicably
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`failed to account for either the positive impact of mitigation measures already or soon-to-be
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`employed by the Maine lobster fishery. NMFS also ignored or arbitrarily discounted evidence
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`submitted by MLA and others that would have enabled the agency to correct its mistakes.
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`14.
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`The 2021 BiOp is already impacting the Maine lobster fishery. On September 17,
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`2021, NMFS issued a final rule amending the regulations implementing the Atlantic Large
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`Whale Take Reduction Plan (the “TRP Rule”), which included, inter alia, a fishing closure
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`(termed the “LMA 1 Seasonal Restricted Area”) applicable to participants in the Maine lobster
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`fishery. 86 Fed. Reg. 51,970 (Sept. 17, 2021). This closure applies to a large area of productive
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`fishing grounds where right whale sightings have not been documented. NMFS relied on the
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`2021 BiOp to comply with ESA Section 7 when it issued the TRP Rule.
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`15. MLA seeks an order from the Court declaring that NMFS’s 2021 BiOp and the
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`TRP Rule are arbitrary, capricious and in violation of the ESA, 16 U.S.C. §§ 1361–1389, and the
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`Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, and remanding the 2021 BiOp
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`and TRP Rule to NMFS without vacatur to address these flaws.
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`II. JURISDICTION AND VENUE
`
`16.
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`The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal
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`question arising under the laws of the United States) and under 28 U.S.C. § 1346 (actions against
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`the United States).
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`17.
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`Venue in this Court is proper pursuant to 28 U.S.C. § 1391 because this action is
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`brought against an agency of the United States and officers of the United States acting in their
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`official capacities and because Defendants maintain offices in the District of Columbia.
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`A.
`
`Plaintiff
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`III. PARTIES
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`18.
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`Plaintiff MLA is a private, not-for-profit trade association representing more than
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`1,200 lobster harvesters who fish in the waters off the Maine coast. Founded in 1954, MLA is the
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`oldest and largest fishing industry association on the east coast. MLA and its members are
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`committed to the preservation of a sustainable lobster resource and the fishermen and
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`communities that depend on it. MLA has provided a credible voice for the Maine lobster industry
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`on marine resource management issues and is highly regarded by stakeholders in the health of
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`Maine’s unique coastal and marine resources.
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`19. MLA brings this lawsuit on behalf of its members, who fish in waters subject to
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`NMFS’s 2021 BiOp that is the subject of this Complaint.
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`20. MLA has been actively and diligently involved in efforts to protect the North
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`Atlantic right whale population. For decades, MLA has been working in earnest with NMFS, the
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`Maine Department of Marine Resources, representatives of the environmental and scientific
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`communities, and other stakeholders. MLA has been an industry leader in the development and
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`implementation of practical management measures and harvesting practices that effectively
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`minimize risk to right whales when they are present in waters fished by Maine lobstermen.
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`21. MLA members fish in waters subject to NMFS’s 2021 BiOp issued under the
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`ESA as well as NMFS’s Atlantic Large Whale Take Reduction Plan (“TRP” or “Take Reduction
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`Plan”) issued under the Marine Mammal Protection Act (“MMPA”). MLA’s members engage in
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`fishing practices authorized under the TRP, including the TRP Rule, and the 2021 BiOp. MLA
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`members also fish in Maine’s coastal waters that are exempted from the TRP due to the
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`extremely low probability of North Atlantic right whale impacts in those areas (but where
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`precautionary right whale conservation measures are nevertheless employed).
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`22. MLA and its members have collaborated with scientists in developing and testing
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`fishing gear to reduce the risk of entanglement over many decades. Beginning in the 1990s,
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`MLA partnered with NMFS’s gear team to measure gear profiles, test “weak links” below the
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`buoy, and explore other gear modifications. MLA also worked with researchers in the 2000s to
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`establish methods and standards to deploy weak links, develop buoy line marking methods,
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`deploy remotely operated vehicles and sensors to measure groundline rope profiles, and test a
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`variety of vertical line modifications such as weak rope, stiff rope, glow rope and time tension
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`line cutters. Since 2010, MLA and its members have worked with scientists to publish a resource
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`describing lobster gear and configurations deployed in the New England lobster fishery, map
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`lobster fishing effort in Maine, develop a fishing gear/right whale risk model, document wear
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`issues associated with sinking groundlines and methods to improve wear of those lines, identify
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`options for best fishing practices, test colored vertical lines as a deterrent, measure the breaking
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`strength of existing vertical lines, develop and test methods to weaken rope, develop time tension
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`line cutters, and trial ropeless fishing.
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`23.
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`Over the past decade, the Maine lobster fishery has substantially reduced the risk
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`it once presented to North Atlantic right whales through implementation of risk reduction
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`measures. The best available data show that those measures have been effective at reducing
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`interactions with North Atlantic right whales.
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`24. MLA’s members are on the front line of right whale protection efforts in the Gulf
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`of Maine because they are responsible for implementation of harvesting practices designed to
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`reduce potentially harmful interactions between right whales and lobster fishing gear. Maine’s
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`lobster harvesters have made multiple changes in the deployment of fishing gear that have
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`demonstrably reduced the risk of harm to right whales in the Gulf of Maine. As stewards of the
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`marine environment, Maine lobstermen’s compliance with these measures is very high.
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`25. MLA and its members derive economic, professional, aesthetic, and cultural
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`benefits from the Maine lobster fishery. Defendants’ promulgation of the 2021 BiOp and TRP
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`Rule based on faulty science and assumptions in violation of the ESA and APA has caused and
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`continues to cause economic, aesthetic, cultural and procedural injury to MLA and its members’
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`interests in the Maine lobster fishery through the imposition of arbitrary risk reduction targets
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`and mandating superfluous current and future obligations to reduce North Atlantic right whale
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`fishing gear interactions. MLA and MLA’s members’ injuries will be redressed by the relief they
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`request, as that relief would undo the causes of those actual and threatened injuries. MLA and its
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`members have no other adequate remedy at law.
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`B.
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`Defendants
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`26.
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`Defendant Gina Raimondo is the Secretary of the U.S. Department of Commerce
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`and is sued in her official capacity. Secretary Raimondo directs all business of the Department of
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`Commerce and is the official ultimately responsible under federal law for ensuring that the
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`actions and decisions of the Department comply with all applicable laws and regulations.
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`27.
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`Defendant Janet Coit is Deputy Administrator of the National Oceanic and
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`Atmospheric Administration (“NOAA”) and Assistant Administrator for NMFS. Administrator
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`Coit has responsibility for implementing and fulfilling the agency’s duties under the ESA.
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`Administrator Coit is sued in her official capacity.
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`28.
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`Defendant NMFS is an agency within the U.S. Department of Commerce and is
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`sometimes referred to as NOAA Fisheries. NMFS is the agency to which the Secretary of
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`Commerce has delegated authority to manage productive and sustainable fisheries and to
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`conserve protected resources.
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`A.
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`Endangered Species Act
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`IV. LEGAL FRAMEWORK
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`29.
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`The ESA protects imperiled species by providing the implementing agencies with
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`authority to list qualifying species as “endangered” or “threatened.” A species is “endangered” if
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`it “is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. §
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`1532(6). A species is “threatened” if it “is likely to become an endangered species within the
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`foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20).
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`30.
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`Additionally, Section 7(a)(2) of the ESA requires federal agencies to “insure that
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`any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the
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`continued existence of any” listed species or result in the “destruction or adverse modification”
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`of designated critical habitat. Id. § 1536(a)(2). NMFS does so by issuing a biological opinion. 50
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`C.F.R. § 402.14(g)(4).
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`31.
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`To comply with Section 7(a)(2)’s substantive mandate, federal agencies must
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`consult with NMFS when their actions “may affect” a listed marine species. 16 U.S.C. §
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`1536(a)(2). The agencies must utilize the “best scientific and commercial data available” during
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`the consultation process. Id.; 50 C.F.R. § 402.14(f), (g)(8). If NMFS determines that the agency
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`action is likely to jeopardize the species, the opinion may specify reasonable and prudent
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`alternatives that will avoid jeopardy and allow the agency to proceed with the action. 16 U.S.C. §
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`1536(b)(3). The agencies may also “suggest modifications” to the action during the course of
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`consultation to “avoid the likelihood of adverse effects” to the listed species even when not
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`necessary to avoid jeopardy. 50 C.F.R. § 402.13.
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`32.
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`A biological opinion that concludes that the agency action is not likely to
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`jeopardize the continued existence of a listed species but will result in “take” incidental to the
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`agency action must include an incidental take statement. 16 U.S.C. § 1536(b)(4). Among other
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`requirements, an incidental take statement must specify any “reasonable and prudent measures”
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`that NMFS considers necessary or appropriate to minimize the impact of any incidental take as
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`well as “terms and conditions” to implement those measures. Id.; 50 C.F.R. § 402.14(i).
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`B. Marine Mammal Protection Act
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`33.
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`The MMPA, like the ESA, generally prohibits the “taking” of marine mammals.
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`16 U.S.C. § 1371(a). Commercial fishing operations, however, may incidentally take marine
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`mammals provided that they comply with the requirements of the MMPA. 16 U.S.C. § 1387.
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`34.
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`The MMPA’s protective standards are qualitatively more stringent than the ESA’s
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`standards and more protective of marine mammals. One of the MMPA’s most precautionary
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`conservation metrics is the “potential biological removal level.” 16 U.S.C. § 1362(20). The
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`potential biological removal level is the “maximum number of animals, not including natural
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`mortalities, that may be removed from a marine mammal stock while allowing that stock to reach
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`or maintain its optimum sustainable population.” Id. “Optimum sustainable population,” in turn,
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`means “with respect to any population stock, the number of animals which will result in the
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`maximum productivity of the population or the species, keeping in mind the carrying capacity of
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`the habitat and the health of the ecosystem of which they form a constituent element.” Id. §
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`1362(9).
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`35.
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`The MMPA imposes additional conservation measures for “strategic stocks.”
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`Strategic stocks include those marine mammals that are listed as threatened or endangered under
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`the ESA, as well as those stocks where the human-caused mortality exceeds the potential
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`biological removal level. Id. § 1362(19). The MMPA authorizes, and, in some cases, requires
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`NMFS to “develop and implement a take reduction plan designed to assist in the recovery or
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`prevent the depletion” of strategic stocks that interact with commercial fisheries. Id. § 1387(f)(1).
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`The take reduction plan is developed by the take reduction team, which is established by NMFS
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`pursuant to the requirements of the MMPA. Id.
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`C.
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`Administrative Procedure Act
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`36.
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`The APA governs judicial review of federal agency actions. 5 U.S.C. §§ 701–706.
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`37.
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`Under the APA, courts “shall . . . hold unlawful and set aside agency action,
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`findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise
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`not in accordance with law” or made “without observance of procedure required by law.” Id. §
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`706(2)(A), (C), (D).
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`38.
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`Suits against the government for maladministration of the ESA are properly
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`brought under the APA. See Conservation Force v. Salazar, 753 F. Supp. 2d 29 (D.D.C. 2010).
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`39.
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`An agency’s issuance of a biological opinion constitutes “final agency action”
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`subject to review under the APA. See Bennett, 520 U.S. at 178.
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`A.
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`History of the Maine Lobster Fishery
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`V. BACKGROUND
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`40.
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`The Maine lobster fishery is one of the oldest continuously operated industries in
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`the United States. With the advent of canning, Maine established the first commercial lobster
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`fishery in the 1840s. In the intervening 180 years, the tradition of lobstering has been passed
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`down for generations and is a cornerstone of Maine’s culture, heritage, and economy.
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`41.
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`The Maine lobster fishery has long prided itself on being a sustainable industry.
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`The fishery adopted rules in the late 1800s to protect the resource and prevent overfishing by
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`restricting the fishery to trap gear, banning the catch of and protecting egg-bearing female
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`lobsters, and restricting the size of lobsters that may be retained. Through these and other
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`conservation measures, the lobster fishery remains vibrant today and is one of the country’s most
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`valuable commercial fisheries. In 2020 alone, over $405 million worth of lobster was caught off
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`the coast of Maine. For rural coastal communities in Maine, the lobster fishery is the economic
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`engine that keeps those towns alive.
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`42.
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`The Maine lobster fishery supports tens of thousands of jobs and hundreds of
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`ancillary businesses. Maine’s lobster fleet directly supports more than 10,000 jobs—including
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`3,670 captains, up to 5,750 crew, and 1,095 students. Maine’s wholesale lobster distribution
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`supply chain is estimated to contribute an additional $967 million and 5,500 jobs.
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`B.
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`The North Atlantic Right Whale
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`43.
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`In the early 1890s, commercial whalers hunted North Atlantic right whales to the
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`brink of extinction. As a result, the North Atlantic right whale has been listed as endangered
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`under the ESA or its predecessor act since 1970. The Maine lobster industry recognizes the need
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`for conservation of the North Atlantic right whale, and Maine lobstermen have taken proactive
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`steps to ensure that the lobster fishery and North Atlantic right whales can coexist.
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`44.
`
`Since the inception of the Atlantic Large Whale Take Reduction Team (“Take
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`Reduction Team”) in the mid-1990s, MLA has been a leader in federal and state efforts to
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`preserve and protect the health of the North Atlantic right whale population when the animals
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`transit the waters off the Maine coast. MLA has been a key player in the development and
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`implementation of practical management measures and lobster harvesting practices to minimize
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`risk to North Atlantic right whales.
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`45. MLA’s members are on the front lines of right whale protection efforts in the Gulf
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`of Maine because they are responsible for implementing harvesting practices designed to reduce
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`potentially harmful interactions between right whales and lobster fishing gear. Maine’s lobster
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`harvesters have made many changes in the deployment of harvesting gear, including removing
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`all floating line from the surface, incorporating “weak links” into buoy lines, deploying sinking
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`groundlines in non-exempt waters, and significantly reducing the amount of vertical lines in the
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`water column by adding more traps per end-line. These measures have combined to
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`demonstrably reduce the risk of harm to right whales from the lobster fishery in the Gulf of
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`Maine. Maine lobstermen also mark their buoys and end-lines to aid in identifying the origin of
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`fishing gear if it were to entangle a whale despite these mitigation efforts. The State of Maine
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`implemented new lobster gear marking regulations in 2020 that expand and enhance gear
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`marking requirements beyond what has been required under the TRP.
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`46.
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`There has never been a known North Atlantic right whale serious injury or
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`mortality associated with Maine lobster gear.
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`C.
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`Previous Litigation Challenging the 2014 Biological Opinion
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`47.
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`On January 18, 2018, a coalition of environmental advocacy groups filed a
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`lawsuit challenging the biological opinion issued by NMFS in 2014 (the “2014 BiOp”) regarding
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`effects of the American Lobster Fishery on the North Atlantic right whale. Those groups alleged
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`that the 2014 BiOp violated the ESA, the MMPA, and the APA.
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`48.
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`Shortly after the lawsuit challenging the 2014 BiOp was filed, MLA intervened in
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`the litigation to protect the interests of its members.
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`49.
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`On April 9, 2020, the District Court for the District of Columbia issued a decision
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`invalidating NMFS’s 2014 BiOp. Ctr. for Biological Diversity v. Ross, No. CV 18-112 (JEB),
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`2020 WL 1809465 (D.D.C. Apr. 9, 2020). Although the Court vacated a portion of the 2014
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`BiOp pertaining to the North Atlantic right whale, the Court stayed its order for nine months
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`until May 31, 2021, thereby allowing the lobster fishery to continue operating and providing
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`NMFS additional time to complete work on a new biological opinion and a new MMPA rule.
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`Ctr. for Biological Diversity v. Ross, 480 F. Supp. 3d 236 (D.D.C. Aug. 19, 2020).
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`D.
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`The 2021 Biological Opinion
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`50.
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`NMFS initiated the Section 7 consultation leading to the draft biological opinion
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`(“Draft BiOp”) against the backdrop of an unusual mortality event declared in mid-2017—which
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`included the unprecedented loss of 12 right whales in Canada—interrupting a prolonged period
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`of improvement in the prospects for recovery of the North Atlantic right whale. The right whale
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`population had nearly doubled under the guidance of the Take Reduction Team and the
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`Maine Lobstermen’s Ass’n v. NMFS et al.
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`Case 1:21-cv-02509 Document 1 Filed 09/27/21 Page 15 of 32
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`associated TRP implemented by NMFS pursuant to Section 118(f) of the MMPA, reflecting two
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`decades of collaboration among lobstermen, researchers, managers, and other stakeholders to
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`develop and implement innovative fishing practices and gear strategies to reduce interactions
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`between whales and fishing gear.
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`51.
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`On October 1, 2019, MLA requested that NMFS grant MLA “applicant status,”
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`pursuant to ESA Section 7, for the consultation that led to the issuance of the 2021 BiOp. On
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`October 24, 2019, NMFS denied MLA’s request for applicant status.
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`52.
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`NMFS released the Draft BiOp on January 15, 2021. MLA, along with 11 other
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`lobster fishing associations and stakeholders representing active participants in the American
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`Lobster Fishery as well as the individuals and organizations that rely upon the fishery, submitted
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`detailed comments, identifying significant concerns associated with the data and analyses
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`presented in the Draft BiOp. MLA’s comments also made recommendations for additional data
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`and analyses to be considered and undertaken by NMFS to ensure that the decision complies
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`with the ESA. See Exhibit A.
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`53.
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`On May 27, 2021, NMFS released the final 2021 BiOp. The deficiencies and
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`concerns identified by MLA and other commenters on the draft 2021 BiOp were not addressed
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`by NMFS in the final 2021 BiOp. These deficiencies include, but are not limited to, the
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`following.
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`1.
`
`NMFS arbitrarily assigned right whale impacts from Canadian fisheries to
`the Maine lobster fishery.
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`54.
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`In the 2021 BiOp, for the purpose of apportioning “risk” levels, NMFS
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`determined that all fishing gear entanglements with North Atlantic right whales of “unknown”
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`origin should be equally allocated (50:50) between the U.S. and Canada. This determination is
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`one of the most significant unsupported assumptions in the 2021 BiOp because the vast majority
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`Maine Lobstermen’s Ass’n v. NMFS et al.
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`Case 1:21-cv-02509 Document 1 Filed 09/27/21 Page 16 of 32
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`of all right whale serious injury and mortality entanglements attributed to the American Lobster
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`Fishery are either cases with no fishing gear at all or involve fishing gear of unknown origin,
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`most of which does not have the characteristics of Maine lobster gear. Moreover, in recent years,
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`most right whale serious injury and mortality entanglements involving fishing gear of known
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`origin involve Canadian fishing gear. NMFS’s apportionment of risk levels is arbitrary and
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`contrary to the best available scientific and commercial information for these and the following
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`reasons as well as other reasons brought to NMFS’s attention in comments on the draft 2021
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`BiOp.
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`55.
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`The best available data show an increasing trend in known right whale
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`entanglements, particularly in the proportion of entanglements causing serious injury and
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`mortality, with Canadian fishing gear. At the same time, known entanglements in U.S. fisheries,
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`particularly the Maine lobster fishery, have decreased, with none being observed in the Maine
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`lobster fishery in over 17 years. The 2021 BiOp erroneously discounts the value of known
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`entanglement trends despite NMFS’s own data showing that many of all known whale
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`entanglements have been confirmed to a specific country of origin from 2016 to 2019. The 2021
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`BiOp’s treatment of the data for known fishery interactions is arbitrary and unsupported.
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`56.
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`NMFS incorrectly relied on a general assumption that right whales spend more
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`time in U.S. waters than in Canadian waters and that right whales would be equally at risk of
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`entanglement in either country. There are no data to support this assumption. In so doing, NMFS
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`arbitrarily discounted or ignored the fact that the best available science demonstrates that North
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`Atlantic right whales have shifted their migratory routes away from Maine lobster fishing
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`grounds and into Canadian fishing grounds that right whales reach without transiting the Maine
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`lobster fishery. NMFS also arbitrarily failed to consider the risk to right whales during
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`Maine Lobstermen’s Ass’n v. NMFS et al.
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`Case 1:21-cv-02509 Document 1 Filed 09/27/21 Page 17 of 32
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`occupancy of fishing grounds and, instead, considered assumed risk to the animals in all waters
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`(regardless of whether fishing occur