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Home , Right whale

March 8, 2021

Mainers Guarding Right 2080 North Road Mount Vernon, ME 04352

President Joseph R. Biden, Jr. The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500

Dear Mr. President:

We write to address a serious issue threatening the North Atlantic right and other indigenous whale that inhabit the east coast of the United States. We reference a letter dated February 24th, 2021 from the Maine Congressional Delegation. We strongly disagree with many of the points made in their letter. The delegation letter states that there are no right whales being entangled by Maine fishermen, that the Canadians are to blame for the right whale problem, and that the Maine Lobster industry will be shut down by currently proposed rules leading to the destruction of “thousands of livelihoods, hundreds of coastal communities and the economic backbone of the state.” None of these accusations are true.

The North Atlantic right whale is in critical danger of extinction

In the last decade, the population of the North Atlantic right whale has plummeted due to entanglement in fishing gear and vessel or ship strikes, human caused forms of mortality that have been happening for decades. Currently, data incontrovertibly shows that entanglement in fishing gear is the leading cause of right whale deaths. Even many of the reproductive-aged females that survive entanglement are showing that they are not healthy enough to bring a calf to term and calving is delayed. In a healthy population, the average length of time between is 3 years. Instead, the average interval in our population of right whales is now at least 8 years, a scientifically accepted sign that the population is in extremely poor health. The IUCN recently declared the right whale as “critically endangered”, with most models predicting the species’ extinction within the next two decades at the current level of human-caused mortality.

This letter focuses on the entanglement problem because NOAA is poised to issue a final rule based on recently proposed measures that aim to meet the legal requirements of the Act (ESA) and Marine Protection Act (MMPA) by reducing the risk of entanglement for right whales and other large whales (Fed. Reg. 86, 878 12/31/2020).1 Scientifically, under the MMPA human-caused right whale deaths and serious injuries from all causes in the U.S. and Canada, the Potential Biological Removal (PBR), must be reduced to 0.7 per year. This means that even one right whale per year killed or seriously injured by entanglement in US fishing gear is too many. We are not including information about vessel strike mortality, but we encourage NOAA to improve the current ship speed rule and to impose the strictest rule it can to prevent vessel strikes anywhere within the US EEZ by vessels of all sizes.

The Proposed Rule will not put Maine lobstermen out of business

NOAA’s current Proposed Rule to reduce risk of entanglement in lobster and crab pot/trap gear is meeting a great deal of resistance from Maine lobstermen. It is notable that New Hampshire, , and Rhode Island lobstermen are working with NOAA and none of these states’ fishermen have made the claim that the rule will shut down their fisheries or put them out of business. In fact, some fishermen from Massachusetts have adopted some of the potential new requirements already and they are working well.

We believe that the arguments made by the Maine Congressional Delegation are overstated and misinterpret the Proposed Rule as well as the related draft BiOp for the fishery (Biological Opinion). The Proposed Rule— and even the “non-preferred” Alternative #3 that includes the most comprehensive measures—will not stop Maine lobstermen from fishing. However, not taking strong enough conservation measures now may put Maine’s lobster fishery at greater jeopardy in the future, which is one reason the Maine delegation’s position appears short sighted.

We agree that the Maine lobster fishing industry is a significant part of the U.S. fishery and adds more than a billion dollars a year to the Maine economy. As conservationists, it is not our intent to shut down this iconic industry. Instead, we want to find a sustainable balance between Maine’s economy and the federally mandated requirement to protect the endangered right whale. The proposed gear modifications and partial closures will not stop Maine fishermen from fishing. In fact, Maine fishermen are industrious and resourceful; they will adapt to these rules and continue fishing. A bigger question is whether Maine’s fisheries are evolving toward an end to entanglement, which is what seafood consumers want.

The Maine delegation’s letter states their concern that the BiOp—a requirement of the Endangered Species Act— suggests that within a ten-year period lobstermen would be required to “use ropeless fishing gear when it is not technologically or economically viable”. Ropeless fishing—or on- demand fishing—relies on an acoustic signal to retrieve the lobster trap from the seafloor, thus removing the vertical lines that present the greatest entanglement risk to right whales. It offers a

1 National Oceanic and Atmospheric Administration and the National Marine Fisheries Service, Taking of Marine Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations; Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery, Proposed Rule. 85 Fed. Reg. 86,878 (December 31, 2020) (“Proposed Rule”). potential win-win solution. Importantly, this is new technology that is in development, but the early results are extremely promising and with investment in its industrial application, could easily be available for widespread implementation within 5-10 years. Maine fishermen are not being asked to use ropeless technology in the Proposed Rule; it is only included as an option that can be used in closed areas under a special exempted fishing permit to allow for its continued development. Ropeless technology is not yet available as a commercial fishing option, but many fishermen, including Canadian and Massachusetts fishermen, are testing ropeless prototypes because they know it holds great promise for the future, and they believe we should use technology to solve human/whale conflicts.

In just three years, ropeless fishing of pot/trap gear has significantly advanced. We believe ropeless fishing can expand quickly with more federal funding and support to become a viable technology that can be used to address the co-occurence of whales and vertical fishing lines. We all know the importance of economic markets in driving demand for fisheries. More and more, the American public has demonstrated their desire to eat only sustainably caught seafood. Yet, because of currently unsustainable fishing practices—techniques that kill, maim, or seriously injure whales— the Maine lobster fishery has lost its Marine Stewardship Council endorsement. The long-term adoption of sustainable fishing practices is key to regaining the public’s trust in this fishery, but NOAA will not require ropeless fishing until it is fully proven, trustworthy, and financially viable for fishermen.

Maine lobster fishing gear is entangling whales

The way the Maine delegation presents the “facts” about right whale entanglements in the paints a rosy picture of Maine lobstermen. But it’s not okay, even for the most politically powerful among us, to selectively pick information that fits their argument and leaves out important facts. They would have you believe that Maine lobster gear has not caused a single entanglement in the past decade and only a couple before that. But there are some significant facts that are conveniently omitted and are needed for context.

The Maine lobster and crab industry has a far greater number of vertical lines than any other fishery on the entire eastern seaboard, including Canada. Significantly, 93% of all vertical line fisheries in U.S. Atlantic coast waters are lobster and jonah crab (a combined fishery) and Maine fishermen have 87% of all the traps for that fishery (2015 AFSMC). Annually, Maine issues 3,000,000 trap tags to 4,800 commercial fishing boats and catches 82% of the total catch (2017, Maine DMR). Additionally, NOAA’s Draft Environmental Impact Statement2 for the rule summarized the known entanglements for a recent 9-year period (2009-2018) found in the waters between Canada and - 267 minke whales, 264 humpbacks, 89 right whales, and 62 fin whales. That is an astonishing 682 entangled whales or 75 whales per year. Yet, the Maine delegation would have you believe that Maine has no responsibility for any of these entanglements.

2 Draft Environmental Impact Statement, Regulatory Impact Review, and Initial Regulatory Flexibility Analysis for Amending the Atlantic Large Whale Take Reduction Plan: Risk Reduction Rule (Nov 2020) (“DEIS”). Photo-identification studies paints an even gloomier picture. North Atlantic right whales are the most studied large whale in the world; scientists have collected over one million photographs of individuals within the population over forty years. These photographs show that, based on scars from entanglement and cases with attached gear, there have been at least 1,624 right whale entanglements, that an extraordinary 87% have been entangled at some time in their life, and 59% have been entangled more than once. Annually 26% are entangled, and importantly, 8% of those entangled have either died or are so seriously wounded that death is likely. In truth, the vast number of entanglements go unseen and are only re-discovered through the evidence of the scars they leave on the . We suggest that understanding this is key in interpreting the Maine Delegation’s misleading statements.

The delegation states that there is no recent evidence that Maine fishing gear is killing right whales—there is no “proof.” In truth, of all the right whale entanglements mentioned above, we only know where less than one percent of them have happened. This is in part because the majority of cases result in only scars and no gear is recovered. But it is also because of inconsistent gear marking. The Maine lobster industry and state Department of Marine Resources fought successfully to exempt Maine state waters from gear marking requirements over the past several decades. Canada only began gear marking in recent years. That means that more than 99% of historic entanglements have an unknown specific origin, somewhere on the eastern seaboard. This places an onus on all of our individual state fisheries to collaborate in a national strategy to reduce entanglement risk in all U.S. waters where right whales and unsafe fishing gear co-occur. States other than Maine have chosen to cooperate. Maine, instead, withdrew from a near-consensus agreement between stakeholders, stating there was no proof that Maine fishing gear kills right whales. But on the basis of the precautionary principle alone, Maine must take on its fair burden.

The delegation’s letter states, “Since 2002, there has not been a single right whale serious injury or mortality that has been attributed to the Gulf of Maine or Georges Bank lobster fishery.” In truth, NOAA Fisheries has found that from 1997 to 2017 at least three right whales were entangled in Maine Coastal lobster fisheries and three more were caught in offshore lobster fisheries in the Gulf of Maine. Also, there is a very clear case of a 2-year-old right whale found dead off the coast of Florida in December 2012 with three sets of lobster gear embedded in his tail stock determined to be from northeast nearshore trap/pot gear based on the red gear marks found on the ropes. The Maine Delegation is not keeping up with the entanglement information and cannot say that right whales are not being entangled in Maine waters. The fact is that even though there is a tremendous lack of data we know that right whales are still being entangled by gear in U.S. waters. Even worse, for every mortality documented there are nearly 3 that go unnoticed (Pace et al 2021). The authors of this research believe that entanglement mortality is being under-reported because entangled right whales die slowly over months, losing most of their stored fat or , and then sink to the seafloor un-noticed. The fact is that 99% of the gear from entanglements is never recovered and is not traced back to the source, therefore, Maine has not and cannot prove that they have zero culpability.

We acknowledge that, just like other east coast lobstermen, Maine lobstermen have made changes to their gear, including weak links at the buoy implemented in 1997. Unfortunately, there is no proof weak links have reduced entanglement rates. The Maine lobster fishery also implemented partial gear marking in 2002, whereby all gear fishing in federal waters were marked with a red tag; however, no marks were required in Maine State and Exempted (closer to shore) waters. In 2009, Maine also removed the floating rope between each trap; this action likely had a real and significant conservation benefit. NOAA’s requirement to “trawl up” gear in 2014 (meaning the addition of more traps per vertical line) reduced the number of vertical lines slightly, but likely resulted in more severe entanglements because the trawls are heavier, and the ropes are stronger. But we do not agree that these measures have resulted in significant reductions in entanglement rate; the right whale population has continued to decline since 2010. Scientists have shown that in the 2000s, the human-caused mortality and sublethal effects of entanglement were the predominant factors in slowing right whale population growth to only 2% per year, while three populations of Southern right whales in the comparatively unfished waters of , and were all growing at 5.3 - 7.6%.

Canada is only part of the problem, Maine shares responsibility

The Maine delegation’s letter also states, “Given what we know about the right whales’ movements to colder Canadian waters, Maine fishermen appear to be taking the blame for a problem that is rooted in a changing ocean climate.” This is also misleading and only partially the case. In fact, less than one-third of the North Atlantic right whale population is annually sighted in Canada. We simply don’t know where most right whales are, but during the Maine late winter lobster fishing season their numbers have increased in Bay by 300% to 180 whales/season in the last decade. This is just 60 miles and less than a day’s swim from state and federal waters off the coast of Maine. What we do know about right whale movements is that throughout much of the year, they move through the waters fished by Maine lobstermen to get to their food sources. There is a fifty- year sighting record of right whales in Maine, which includes, in 2019-20, three that were photographed so close to shore that Maine landmarks were easily observable— and these sightings were made opportunistically.

Scientists cannot regularly survey Maine waters for right whales because of lack of funding (including any from the State of Maine), but our limited knowledge shows that right whales have been sighted in Maine waters every month of the lobster fishing season. Many Maine fishermen claim they have never seen a right whale—the truth is, even trained experts find these animals challenging to spot. boats have had over one hundred documented sightings of between 1-7 right whales over the recent thirty-year time period. The evidence points to the fact that there are right whales in Maine waters where the density of lobster gear is highest, and clearly shows that any right whale swimming through Maine waters is subject to an extreme risk of entanglement. Given that there are only about 350 North Atlantic right whales left on earth, and only about 70 reproductively active females, the entanglement of even one animal matters greatly.

Placing all the blame for entanglements on Canada is also a misrepresentation of the facts. Canada had the unfortunate experience of a “perfect storm” of events that led to the increased number of right whale deaths in their fishing gear in just the last few years. But it is a fact that U.S. fishing gear has been recovered from entangled right whales in that same time period. The Canada government and Department of Oceans and Fisheries should not be made a scapegoat. Canada has recently implemented dynamic closures to stop entanglements, is engaged in extensive research with ropeless fishing and weak rope (designed to break easier) and has poured millions of dollars into right whale survey efforts and novel research. The state of Maine has put no money into efforts to survey the state or federal waters in which they fish, or toward technology to evolve the fishery in a healthy way toward sustainability—which we believe is what most Maine people and the American public want.

The Proposed Rule will help right whales if all lobster fishermen implement them, including Maine lobster fishermen

Finally, the Maine delegation’s letter states that “even if all ten federal fisheries that it covers were completely shut down, the North Atlantic right whale population would still decline at the same rate as it would under the 98 percent risk reductions that are currently pending finalization.” This sentence was taken from a recently published NOAA report about the projections of the right whale population (Linden NOAA/NMFS/GARFO 2021). The sentence is misleading. First, taken alone, it implies that the right whales are doomed, that they cannot recover even if all US entanglements are stopped. But the above quote assumes that nothing is done in Canada to stop entanglements, and that those entanglements would continue. The paper clearly states that if both Canada and the United states each implement methods to stop entanglements -- the population would increase.

In Conclusion

In conclusion, the letter from the Maine delegation exaggerates the consequences of the Proposed Rule and suggests catastrophic outcomes that will plainly not happen. Maine lobstermen will continue, in the short term, to fish very much like they have been fishing. In the long term, Maine lobstermen will adopt new technologies that work for them financially and practically. But at the same time these techniques must protect right whales as well as other whale species prone to entanglement.

Within the past 20 years there has only been one extinction, but another is imminent. The extinction of the was caused by the failure of the Chinese government to reduce human impact on the species. Likewise, the Mexican government’s failure to regulate illegal fishing, and the bycatch therein, will probably cause the to be extinct within a decade. The United States and Maine should act now, as Canada is doing, while there is still time to reverse the current trajectory of right whales toward extinction.

Mr. President, you do not have to worry about protecting the Maine lobster fishing industry, because they are not being asked to do any more than their fair share. Nor are they being asked to do anything that will put them out of business. Maine lobstermen can adapt to the Proposed Rule and at the same time help save right whales from extinction. We urge you to recognize the impact the Proposed Rules can have on the right whale population and its recovery. These Proposed Rules, in their strongest form, are necessary to save the North Atlantic right whale from extinction, and to move the fishing industry toward sustainability and improve its marketability. We stand ready to work with you to ensure that our country’s right whales and Maine’s lobstermen will survive for generations to come.

Sincerely,

Barbara Skapa Mainers Guarding Right Whales Mount Vernon, ME 04532

Bill McWeeny Ocean Environmental Educator Principal Investigator for The CALVIN Project Brooksville, ME 04617

Zack Klyver, Science Director Blue Planet Strategies Bar Harbor, ME 04609

Prof. Sean K. Todd, Ph.D. Steven K. Katona Chair of Marine Sciences and Director, Allied Whale College of the Atlantic, Bar Harbor, ME 04609

Russell Wray Citizens Opposing Active Sonar Threats (COAST) Hancock, Maine 04640

Jennifer Kennedy Executive Director Blue Ocean Society for Eliot, ME 03903

Mark Dittrick N. A. Right Whale Beacon Project The Belfast Center Suite 213 9 Field Street Belfast, ME 04915

Jane Harrison West Bath, ME 04530

Steven K. Katona, Ph.D Emeritus, College of the Atlantic Bar Harbor, ME 04609

Cc: Mr. Justin Trudeau, Prime Minister of Canada Ms. Gina Raimondo, Ph.D, U.S. Secretary of Commerce Mr. Ben Friedman, Deputy Under Secretary for Operations, performing the duties of Under Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator Ms. Bernadette Jordan, Minister of Fisheries, Oceans, and the Canadian Coast Guard Mr. Paul Doremus, Ph.D, Acting Assistant Administrator of NOAA for Fisheries Mr. Sam Rauch, Deputy Assistant Administrator of NOAA for Regulatory Programs Mr. Cisco Werner, Director of NOAA Scientific Programs and Chief Science Advisor Ms. Donna Wieting, Director of NOAA Fisheries Office of Protected Resources Mr. Evan Howell, Ph.D, Director of NOAA Fisheries’ Office of Science and Technology Ms. Karen Hyun, Ph.D, NOAA Chief of Staff Mr. Michael Petony, Regional Administrator of Greater Atlantic Regional Fisheries Office Ms. Colleen Coogan, Marine Mammal and Sea Turtle Branch Chief at GARFO Mr. Jon Hare, Ph.D, Director, Northeast Fisheries Science Center Mr. Peter O. Thomas, Ph.D, Executive Director, Marine Mammal Commission Ms. Rebecca Lent, Ph.D, Executive Secretary, International Commission Mr. Michael Ulica, President and COO, National Geographic Society Mr. Lonnie G. Bunch III, Secretary of the Smithsonian Institute Sir David Attenborough, Naturalist and BBC Film Maker Ms. Sylvia A. Earle, Ph.D, President and Chairman of Mission Blue Mr. Carl Safina, Ph.D, President, The Safina Center Mr. Robert E. Beal, Executive Director, Atlantic States Marine Fisheries Commission Mr. Thomas A. Nies, Executive Director, New England Fisheries Management Council Mr. John F. Quinn, Ph.D, Chairman, New England Fisheries Management Council Mr. Charlie Baker, Governor of Commonwealth of Massachusetts Mr. Dan McKiernan, Director, Division of Fisheries of the Commonwealth of Massachusetts Mr. Seth Moulton, U.S. Representative of the Commonwealth of Massachusetts Mr. Jared Huffman, U.S. Representative of the State of California Mr. Richard Blumenthal, U.S. Senator of the State of Connecticut Mr. Charles Schumer, Senate Majority Leader, U.S. Senator of the State of Ms. Nancy Pelosi, House Majority Leader, U. S. Representative of California Ms. Janet Mills, Governor of the State of Maine Mr. Tom Abello, Legislative Director, Office of the Governor of Maine Mr. Jerry Reid, Chief Legal Counsel, Office of the Governor of Maine Ms. Joan Ferrini-Mundy, President, University of Maine Mr. Patrick Keliher, Commissioner of Marine Resources of the State of Maine Mr. David Miramant, Maine Senator, Chair of the Maine Marine Resources Committee Ms. Susan Collins, U.S. Senator of the State of Maine Mr. Angus King, U.S. Senator of the State of Maine Ms. Chellie Pingree, U.S. Representative of the State of Maine Mr. Jared Golden, U.S. Representative of the State of Maine