Court: Federal Failure to Protect Right Whales from Deadly Entanglements Violates Law

A federal court ruled in favor of the Center for Biological Diversity, Conservation Law Foundation, and Defenders of Wildlife in a long-running case challenging NOAA Fisheries’ failure to protect critically endangered North Atlantic right whales from deadly entanglements in American lobster fishing gear. 

The court found that the agency violated the Endangered Species Act and Marine Mammal Protection Act when it issued a May 2021 biological opinion and a September 2021 final rule because not enough was done to reduce the lobster fishery’s lethal threat to right whales. This decision comes after more than four and a half years of litigation, during which the right whale’s population has plummeted from an estimated population of 455 to no more than 336 surviving animals. 

“The court’s decision recognizes what NOAA Fisheries has ignored for decades—that Congress clearly intended to protect right whales from the lobster gear entanglements that are driving the species toward extinction just as surely as whaling nearly did,” says Jane Davenport, senior attorney at Defenders of Wildlife. “Today’s opinion is the course correction the agency needs to put both the species and the fishery on a path towards sustainability and co-existence.”

Conservation groups originally sued in federal court in Washington, DC in early 2018. In April 2020, the groups won a ruling that NOAA Fisheries’ prior biological opinion on the lobster fishery violated the Endangered Species Act. Per a court order, the agency had until May 31, 2021, to finalize a new biological opinion. 

“This is a huge victory in the fight to save these profoundly endangered whales from extinction,” said Kristen Monsell, oceans legal director at the Center for Biological Diversity. “Lobster gear is a deadly threat to right whales, and the courts are telling the federal government to quit stalling and start taking real action. The Biden administration must work much harder to help the industry prevent these agonizing, deadly entanglements.”

When right whales become entangled in fishing gear, they can drown immediately or die over an extended period from injuries, infections, or starvation. 

NOAA Fisheries issued a new rule on August 31, 2021 to reduce lethal entanglements in the lobster fishery. Yet the agency admits that U.S. fisheries will nonetheless continue to entangle more than 15% of the right whale population each year, or roughly 55 right whales a year based on the current population. The agency estimates that these entanglements will result in the death or serious (i.e., likely lethal) injury of more than three right whales each year.

“For too long, the federal government has failed to act while North Atlantic right whales slip toward extinction,” said Erica Fuller, Senior Attorney at CLF. “The court’s ruling today makes it clear that fishery managers must do more to protect this species. We must all commit to taking and funding every step necessary, because even one right whale death is too many.”

The plaintiffs amended their lawsuit in September 2021 to add claims alleging that the agency’s new rule violated the Marine Mammal Protection Act by failing to reduce the risk that right whales will die in lobster lines to the low levels required by the statute within six months of implementation. The filing also argued that the agency’s assessment of how the lobster fishery affects right whales, called a biological opinion, failed to comply with the Endangered Species Act because it contained an Incidental Take Statement that authorized “zero” lethal takes despite anticipating more than three such takes a year, and that this statement was issued despite the agency’s failure to authorize incidental take under the MMPA as a condition precedent. The court ruled for Plaintiffs on these claims. 

Even nonfatal entanglements sap whales of strength and decrease reproductive success. Chronic entanglements in heavy gear drain a whale's energy — so much so that it now takes females nearly 10 years between births to have another calf. They have also led to right whales being shorter and lighter than in years past, further inhibiting their ability to break free of entangling gear.

This critically endangered whale population has been declining since 2010, suffering an estimated average of 20 deaths and serious injuries per year. The unusual mortality event declared in 2017 is now entering its sixth straight year. 

The court ordered the parties to submit a joint proposed briefing schedule on remedy by July 20 and scheduled a status hearing for July 22, 2022.

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Additional Media Contacts: 
Kristen Monsell, Center for Biological Diversity, (914) 806-3467,  kmonsell@biologicaldiversity.org
Carol Gregory, Conservation Law Foundation, (202) 413-8531, cgregory@clf.org

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.7 million members and online activists dedicated to the protection of endangered species and wild places. 
 
Conservation Law Foundation is a regional, nonprofit organization that protects New England’s environment for the benefit of all people. We use the law, science and the market to create solutions that preserve our natural resources, build healthy communities, and sustain a vibrant economy.