“Whale” They Be Left Behind? Courts Say No after New Protective Measures are put in place for the Right Whale.

By: Audra Gale

 “The whales do not sing because they have an answer, they sing because they have a song.”[1] For North Atlantic right whales, could Judge James E. Boasberg be their answer?

What Whale?

Eubaleaena glacialis.[2] The North Atlantic right whale is one of the rarest whale species in the world. [3] As of July 2020, the International Union for Conservation of Nature (IUCN) has updated the classification of the North Atlantic right whale on the Red List from “endangered” to “critically endangered.”[4] This Red List classification is the last category before a species is “extinct in the wild.”[5] Currently, there are an estimated 400 whales left of the species.[6] More alarmingly, only 100 of them are females capable of breeding.[7] The North Atlantic right whale is also listed as a member of the “highest risk category possible,” “Strategic and Depleted,” under the Marine Mammal Protection Act.[8] They are also listed as the highest category of risk under the Endangered Species Act – “endangered.”[9] Additionally, the North Atlantic right whale was added to NOAA’s Species in the Spotlight initiative. The initiative aims to increase focus and understanding of those species most at risk that fall under their fisheries jurisdiction.[10]

Who knew lobsters and whales were sworn enemies?

The North Atlantic right whale’s high mortality rate can be attributed to “human interaction.”[11] For North Atlantic right whales, this interaction is boat/vessel strikes and entanglement in heavy fishing gear and wire.[12] Who knew lobsters and whales were sworn enemies? Much of this human interaction can be attributed to the American lobster fishery.[13] Vertical-line, lots of it, stretches the waters in a spread of area “the size of Connecticut to the South of Nantucket.”[14] The lobster line has a record of entangling these whales and are located in areas where the species are most heavily populated.[15]

“Whale” they be left behind?

Judge James E. Boasberg and the National Oceanic and Atmospheric Administration say no.[16] The National Marine Fisheries Service (the “NMFS”) continually let New England lobster fisherman continue and sustain irresponsible behavior, specifically, the use of vertical-line and other equipment that has caused entanglement and striking of North Atlantic right whales.[17] In the past four years, 41 North Atlantic right whales have been killed via entanglement or vessel strike.[18] NOAA has made management and conservation efforts such as a conservation plan, designating critical habitat, requiring lowered vessel speeds in seasonal management areas, a whale sighting alert system, and protocol for how close a boat may get to a North Atlantic right whale.[19]

Judge Boasberg, a U.S. District Judge on the United States District Court for the District of Columbia, has ordered the NMFS to make substantial changes in the American lobster fishery.[20] It was ruled in April 2020 in Center for Biological Diversity, et al. v. Ross, that the allowing destructive behavior, despite the high record of entanglement of the right whale, violated the Endangered Species Act (the “ESA”).[21] Gillnet fishing gear was outlawed prior in a “known New England feeding ground for the endangered North Atlantic right whale.”[22] But now, under the ESA, the NMFS had to issue an Incidental Take Statement (ITS) for the American Lobster Fishery that “‘had the potential to seriously injure or kill’ about 3.25 North Atlantic right whales per year.”[23] What was missed in the 2014 Biological Opinion that deduced these statistics was the immense effect vertical-line fishing has on the right whale. Boasberg’s most recent order considers this oversight.[24]

A strong rationale for the inaction in American lobster fishery reform is that increased regulations will cause negative economic impacts on the industry.[25] Judge Boasberg believes that right now is the prime time to make a meaningful change to the lobster industry – he echoed the sentiments of several wildlife conservation organizations in the April decision, that there is no time to waste.[26] Amidst the COVID-19 pandemic, lobster fisheries are suffering.[27] The pandemic has “gutted the market for lobster, cutting the price in half and pushing fisherman, most of whom are self-employed, to the brink.”[28] This is paired with shifts in lobster population due to the warming ocean temperatures caused by climate change.[29] Immediate cessation in such a large area would “disrupt fisherman’s current operations and near-term plans” and hurt fisherman even further.[30]  The pandemic illustrates a microcosm of what that cessation would look like for those who make their living off of the American lobster fishery.[31] That is why immediate cessation was not an option and Judge Boasberg’s order instead called for an “analysis of the lobster fishery.”[32]

Boasberg gave the NMFS orders to publish an Incidental Take Reduction Report by a set deadline – May 2021.[33] The NMFS must also give status reports every 60 days, starting on September 30, 2020, to show their progress towards new rules – sustainable solutions for the livelihood of both the lobster fishing community and the North Atlantic right whale.[34] This complicated issue and recent developments bring up the conversation of the delicate balance between successful fisheries, federal regulation, and the conservation of endangered species. Thanks to Judge Boasberg, we don’t think “whale” give up hope just yet!


Image from National Geographic


[1] Gregory Colbert, Ashes and Snow: A Novel in Letters (2005).

[2] North Atlantic Right Whale, World Wildlife Fund (2020), https://www.worldwildlife.org/species/north-atlantic-right-whale.

[3] Research: Right Whales, Anderson Cabot Center for Ocean Life at the New England Aquarium (2020), https://www.andersoncabotcenterforoceanlife.org/rightwhales/right-whales/.

[4] The International Union for Conservation of Nature Updates Classification of the North Atlantic Right Whales from Endangered to Critically Endangered, NOAA Fisheries (Jul. 9, 2020), https://www.fisheries.noaa.gov/feature-story/international-union-conservation-nature-updates-classification-north-atlantic-right#:~:text=There%20are%20about%20400%20individuals,fewer%20than%20100%20breeding%20females.&text=North%20Atlantic%20right%20whale.,from%20Endangered%20to%20Critically%20Endangered. [hereinafter NOAA Fisheries].

[5] North Atlantic Right Whale, IUCN Red List (Jan. 1, 2020), https://www.iucnredlist.org/species/41712/162001243.

[6] NOAA Fisheries, supra note 4.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] NOAA Fisheries, supra note 4.

[12] Id.

[13] Ethan Genter, Judge Sets Deadline for Right Whale Protection, Cape Cod Times (Aug. 21, 2020, 8:14 AM), https://www.capecodtimes.com/news/20200820/judge-sets-deadline-for-right-whale-protection. [hereinafter Genter].

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Genter, supra note 13.

[19] NOAA Fisheries, supra note 4.

[20] Genter, supra note 13.

[21] Id.

[22] Paul E. Hagen, Court Finds American Lobster Fishery Requires Incidental Take Statement for Impacts on Endangered North Atlantic Right Whale, The National Law Review (Apr. 14, 2020), https://www.natlawreview.com/article/court-finds-american-lobster-fishery-requires-incidental-take-statement-impacts#:~:text=The%20American%20lobster%20fishery%20is,under%20the%20ESA%20in%201970. [hereinafter Hagen].

[23] Id.

[24] Genter, supra note 13.

[25] Id.

[26] Judge orders deadline for new North Atlantic right whale protections, The Humane Society of the United States (Aug. 19, 2020), https://www.humanesociety.org/news/judge-orders-deadline-new-north-atlantic-right-whale-protections. [hereinafter The Humane Society].

[27] Id.

[28] Id.

[29] Hagen, supra note 22.

[30] The Humane Society, supra note 26.

[31] Id.

[32] Hagen, supra note 22.

[33] The Humane Society, supra note 26.

[34] Id.


  1. Great article, Audra! I was not aware of the substantial threat lobster fishing poses to North American Right Whale populations. Lobsters are such an iconic part of New England culture, as well as an important economic driver for many New England communities. There hasn’t been much (if any) attention drawn to the way in which the lobster industry violates the takings clause of the ESA by causing the deaths of many Right Whales. I like the balancing approach Judge Boasberg is taking with this matter by requiring the lobster industry to adhere to rules protecting the Right Whale and its habitat while considering the economic livelihoods of lobster fishermen. It seems like there is a way to resolve this conflict in a way that benefits both the Right Whale populations and lobster fishermen, and I’m interested in seeing how this plays out.

  2. This is a really fascinating article, Audra! I grew up in New England and had no idea the New England lobster fishing industry posed such a substantial threat to an incredible species like the North Atlantic Right Whale. With only 100 breeding female right whales left in the world, I agree with Judge Boasberg that now is certainly a time for action and to evaluate ways the lobster fishing industry can change to better protect right whale populations. Judge Boasberg seems to have taken a great balancing approach, ensuring that the hardship the lobster industry is undergoing amidst the COVID pandemic is taken into consideration, while still requiring a much-needed analysis on how to reform the lobster fishing industry.

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