The people involved in the Maine lobster fishery got a reprieve from new federal whale protection rules last week. U.S. District Court Judge Lance Walker ruled  Saturday that the Maine Lobstering Union had successfully shown that a temporary ban on fishing in a roughly 967-square-mile zone in the Gulf of Maine would cause some of their members  “irreparable harm.”

Meanwhile, Walker found that the government scientists failed to show that the rules would protect any whales, or even that there would be any North Atlantic right whales in protected areas to benefit from a closure.

The restraining order is temporary, preserving the status quo while both sides develop the factual record to support their case. But Walker put some weight behind concerns that the burden the Maine lobster industry is being asked to bear in the government’s right whale protection program is out of scale with the actual threat that the fishery presents to the whales.

While the rules focus on protecting right whales from becoming entangled in the vertical buoy lines that lobster boats use to find their traps, there is no evidence of trap lines in Maine causing a single right whale death.

Walker agreed with the union that the government’s data are based on speculation about what whales might do in response to certain changes in the region, and not hard evidence based on observation of their actual movements. That information could be available soon from passive acoustic recorders that can detect whales’ songs and document their presence.

The North Atlantic right whale is one of the most endangered species on the planet, with an estimated population of just 368 individuals. Whales have been dying at an unsustainable rate, and the species could become extinct without protection.

It’s unclear how much the Maine lobster fishery has contributed to these deaths, but it is the focus of whale preservation efforts, even though ship strikes are the known leading cause of whale deaths.

Since 2017, 34 right whales have been killed, according to the National Oceanographic and Atmospheric Administration. An earlier estimate of 33 deaths attributed 21 to Canada and 12 to the United States.

Of those, 11 were attributed to ship strikes, only two of which occurred in U.S. waters. The most recent known Maine entanglement occurred in 2004, and the whale survived.

With the population so low, the species can’t survive even a small number of deaths caused by human activity. But saving the right whale from extinction is going to involve a lot more than putting limits on the Maine lobster fishery.

Judge Walker has given the government space to come up targeted rules that will have a better chance of success because they are based on real-world data.


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