The science of sustainable seafood, explained

Lobsters And Right Whales Are On A Climate-driven Collision Course

On August 1st, 2020, the Maine Certified Sustainable Lobster Association (MCSLA) announced the suspension of its MSC certification due to the federal case: Center for Biological Diversity v. Ross. The lawsuit accused the National Marine Fisheries Service (NMFS) of overlooking lobster fishery impacts on critically endangered North Atlantic right whales.

It marked the third time in 2020 that major North American trap fisheries were deemed a threat to an endangered whale species. The California Dungeness crab fishery was closed two months early, and has been delayed again this winter, to avoid migrating humpback whales and over 40 fishing grids in the Gulf of St. Lawrence, most relevant to the snow crab fishery, were shut for the season in June for the same right whale concerns that triggered the MSC suspension.

Whale entanglements are not a new problem for trap fisheries, but this was the first time an MSC certification for American lobster (Homarus americanus) was interrupted due to marine mammal concerns. The suspension added to a tumultuous year for the MSC, including two controversial Atlantic bluefin tuna certifications and the still-pending eastern zone Australian orange roughy assessment.

The Gulf of Maine suspension is an ominous signal for all lobster fisheries in the northwest Atlantic Ocean. The habitat range for the estimated 400 remaining North Atlantic right whales overlaps with all lobster fisheries in the northeastern U.S. and eastern Canada, but areas historically outside right whale range, like the Gulf of St. Lawrence, have been sites of recent unusual mortality events (UMEs). Right whales are moving farther north into fisheries and shipping channels not accustomed to their presence and not properly prepared to avoid them. (Figure 1a, Figure 1b).

Map of new england showing unusual mortality events of right whales
Figure 1a. Right whale UME’s in U.S. waters, from 2017-2020. (NOAA.gov)
Map of unusual mortality events for right whales in Canadian waters, specifically the Gulf of St. Lawrence
Figure 1b. Right whale UME’s in Canadian waters, from 2017-2020. (NOAA.gov)

While the MSC certification for the Gulf of Maine is the only one of 6 active American lobster fisheries to be suspended, Figure 1b shows the still-certified lobster fisheries in Canadian waters have been more dangerous to right whales in recent years than those in the U.S. Changes to these active certifications, and to Monterey Bay Aquarium Seafood Watch ratings for American lobster, seem imminent. This could have major impacts on the highest value species group in U.S. fisheries. It’s hard to say what will happen to the supply of lobster or how the market will react, but there are few substitutes for American lobster in volume, flavor, and price point.

To better understand the status of north Atlantic right whales, how they are interacting with lobster fisheries in the U.S. and Canada, and to what extent the MSC certification suspension will be a harbinger of eco-labelling downgrades to come, we spoke with a range of experts including marine mammal scientists, state and federal authorities, lobster industry stakeholders, and researchers.

Lobster traps overlooking Bass harbor, Maine.
Lobster traps looking over Bass Harbor, Maine. | Shutterstock

What is the status of North Atlantic right whales?

On July 9th, the International Union for Conservation of Nature (IUCN) changed its Red List Category for North Atlantic right whales from endangered to critically endangered. There are about 400 individuals estimated in the population today, with fewer than 100 breeding females. Research published in 2017 made it clear that after two decades of slow recovery, the population began declining again in 2010. In 2017, there were 17 recorded right whale mortalities in Canadian and U.S. waters, with no calves produced that year either. This prompted NOAA Fisheries to declare an “unusual mortality event” (UME). The UME is ongoing, and to date includes 41 right whales: 31 dead whales plus 10 seriously injured whales last seen alive with severe entanglements or vessel strike injuries.

As right whale populations began to decline, so did their presence in traditional waters. Sean Hayes, the Protected Species Branch Chief for NOAA’s Northeast Fisheries Science Center (NEFSC) explained that it was not unusual to observe right whales outside of their typical areas from time to time, but in 2010 it began to happen more frequently. “Our resight probability for the population dropped dramatically, down to 60% when prior to that we were seeing up to 90% of the population every year. Seeing far less of the population in their regular spots was telling.” In 2015 NEFSC conducted a pilot survey and observed a considerable number of right whales in the Gulf of St. Lawrence, a Canadian body of water known for numerous commercial fisheries including lobster and snow crab, as well as busy shipping channels. Full surveys conducted in 2017, 2018 and 2019 confirmed these observations. For some reason, right whales were leaving the waters in and around the Gulf of Maine, swimming north past Nova Scotia (another area with lobster fishing gear in the water), and up into the Gulf of St. Lawrence.

While marine mammal experts scrambled to track these new migrations, fisheries managers were unaware. Right whales were migrating away from fisheries with robust mitigation measures, into jurisdictions unfamiliar with the critically endangered whales. Of the 31 confirmed UMEs since 2017, 18 occurred in the Gulf of St. Lawrence alone, an area barely frequented by right whales prior to 2010.

After 2010, scientists studying right whales in US waters were not seeing them in some of their traditional aggregating areas, especially in the Bay of Fundy. Then and now, there are many months where we only know the locations of a very few right whales, but we now know that a large part of the population is in the Gulf of St. Lawrence in the summer and fall; and before 2017 there were no protective measures in those waters. Right whales have relocated… to a new place that has active fisheries, [and that is also] the only shipping lane into the Great Lakes and eastern Canada

Colleen Coogan, NMFS Marine Mammal Take Reduction Team Coordinator

The most likely explanation for this migration is in response to ecosystem shifts in the Gulf of Maine and new oceanographic conditions associated with climate change. The Gulf of Maine is unusually shallow with minimal upwelling, which has facilitated a faster warming effect. Recent studies have determined the Gulf of Maine is warming faster than 99% of the rest of the world’s oceans.

At the same time (and probably due to this warming), right whale food supplies have dwindled in the Gulf of Maine. Calanoid copepods, a primary food source for right whales, “are declining in the Gulf of Maine, while clearly [increasing] in the Gulf of St. Lawrence,” said Hayes.

Complicating matters further are fishery shifts related to the same climatic and oceanographic conditions. “The lobster fishery itself is changing biologically and it is all but extinct south of Rhode Island because of an epizootic shell disease,” said Hayes. Lobsters can tolerate these waters, but their shells become thinner and weaker, making them impractical for seafood markets.

Meanwhile, the warming floor of the Gulf of Maine is becoming more habitable for lobsters, allowing them to move farther from shore, bringing the lines of the lobster industry along with them, into the path of right whales.

There is some debate about whether or not the fishery is actively changing its behavior to reflect these shifts, but it is very likely that there is more fishing pressure offshore. With offshore fishing, the density of gear is lower than inshore areas, but the risk to the animals if an entanglement does happen is much greater farther offshore because the gear becomes stronger. Rather than a 2,000lb breaking strength rope that you would find inshore, fishermen would need a poly-steel line at 6,000lb breaking strength. Instead of two to ten pots that a right whale can drag behind it, now you’re talking about forty lobster pots daisy-chained along the bottom of the ocean

Sean Hayes, Protected Species Branch Chief for NOAA’s Northeast Fisheries Science Center

Farther north in the Gulf of St. Lawrence, “there is considerable evidence to suggest the current oceanographic regime is less productive for cod than historically,” explained Jake Rice, former chief scientist for the Department of Fisheries and Oceans Canada (DFO). Cod prey on snow crabs in these waters, and a reduced predation mortality may explain the dramatic increase in the size of the Gulf of St. Lawrence snow crab fishery in recent years. Snow crab might also just be better adapted to new oceanographic conditions in eastern Canada, “the jury is still out on that,” said Rice. “But in any case, the snow crab stocks are much larger than they were fifteen or even ten years ago, the fisheries are much larger, and the high-profile right whale entanglements are at least geographically coincident with the snow crab gear as much as they are with the lobster gear.”

A growing snow crab fishery is bad news for right whales coming into the Gulf of St. Lawrence. Canadian snow crab gear has been associated with some of the worst entanglement years on record. In 2017, the year 12 right whales were killed in the Gulf of St. Lawrence, the snow crab quota was increased to a record level of 43,822 tons, compared to just 7,700 tons in 2010. Snow crab gear requires a, “much larger pot that is the size of my patio table – seven feet, round and when full of snow crab, typically weighing 300 pounds or more plus really significant drag. Entanglements in those things are lethal,” explained Hayes.

Ariel photograph of a North Atlantic right whale
Ariel photo of a North Atlantic Right Whale. | Shutterstock

How can trap fisheries avoid North Atlantic right whales?

Area Closures

Avoiding right whales with targeted fishing area closures is only a feasible strategy if they can be accurately located, which has been challenging. Even if right whales could be tracked with a high level of confidence, area closures might have unintended side effects. “In Massachusetts, restricted areas (closures) have been effective because right whales are predictably aggregating there to feed in the winter and early spring” noted Coogan, “but the danger is that as fishermen move around to new areas, they might stumble upon a new fishing area that is also a whale hotspot we didn’t know about. This is kind of what happened in the Gulf of St. Lawrence. Area closures alone don’t always work because you can’t always know where the whales will aggregate.” Area closures are even less possible in Maine, where compared to the waters off the coast of Massachusetts, flyovers to spot whales are tricky and the acoustic detection capacity is limited along the rugged coastline.

Ropeless Gear

Ropeless gear promises to be a silver bullet for all trap fishing/whale conservation issues. Considerable research funding was committed by SeaWorld and Busch Gardens in 2019, and by Congress this past July, bringing with it hopes of on-the-water applications in the near future.

The idea is to drop traps to the seafloor with no physical attachment to a buoy, at least not until the time of harvest. Acoustic modems are placed on the trap and on nearby vessels in order to track the trap. At the time of harvest the trap could be retrieved by: bottom-stowed rope that deploys and floats to the surface on demand, variable buoyancy traps that sink when being set but can inflate and float to the surface during harvest, or a docking system that would extend a line from the vessel down to the trap to attach and pull the gear up to the surface. Those who have tested ropeless gear are more optimistic about its future than others. “There seems to be a correlation between how experienced people are with ropeless fishing and how feasible they think it is,” said Hayes. “I’m obviously biased because I am pushing the agenda to develop it, so I believe it is feasible.”

But even supporters admit there are major roadblocks before we can imagine a ropeless lobster fleet. Toni Kerns Interstate Fishery Management Program Director at the Atlantic States Marine Fisheries Commission (ASMFC) explained:

Not only does [ropeless gear] have to be tested to see if it functions properly, but then we have to figure out how to integrate that into fishing along the east coast. If trawlers can’t see buoys then they could unknowingly drag through an area of traps. No one seems to be addressing some of these additional concerns and talking about that. How do we map this out? How do we have agreements between two different types of fisheries? If those conversations aren’t even on the table yet then I don’t know how this will work – there are so many pieces we need to bring together before we call them viable solutions.

Toni Kerns, Interstate Fishery Management Program Director at the Atlantic States Marine Fisheries Commission

Trap Reductions

While ropeless research continues, policy makers are focusing on reducing the overall amount of rope in the water. However, this too comes with an array of options and challenges.

Reducing the amount of lobster traps is one approach. Everyone we spoke with agreed that the Maine lobster fishery had more traps in the water than it needed to harvest an economically and environmentally sustainable yield. But lobster traps are used for much more than actively catching lobster in the Maine lobster fishery. “Traps are used to hold bottom, to prospect for new areas, to anticipate where lobsters are moving or serve as a relic for where lobsters were just a couple of weeks ago,” explained Carl Wilson, Director of the Bureau of Marine Science at the Maine Department of Marine Resources.

Nathan Willse, a PhD candidate at the University of Maine studying the lobster industry noted that the use and number of lobster traps speaks to the “cultural fidelity” of lobstermen, where traps are used to identify territory and as gear markers, but are also earned through the apprentice system the state employs to generate new lobstermen. A young aspiring participant in the fishery is typically sponsored by a permit holder and must earn a minimum of 1,000 hours on the job. Once completed, he or she is allowed a permit for “free” and is then expected to fish for a certain number of days – usually about 100 – until that permit becomes an official license. With the license comes their first 300 lobster traps, and the new lobsterman or woman can gain 100 more traps each year, maxing out at 800 traps.

This is a system that keeps the fishery woven into coastal communities and families. Reducing traps would not only interfere with the current fishery management strategies, but also the culture of coastal Maine. Compare this with the southwest Nova Scotia lobster fishery, which has sometimes been shown as an example of a more efficient, less hazardous (to whales) trap fishery compared to its counterpart in Maine.

Lobster fishing area (LFA) 34, off the coast of southwest Nova Scotia, covers an area the size of New Jersey, and accounts for 40 percent of Canada’s lobster landings and 23 percent of all North America’s landings. That is less than half of the annual landings in Maine, but the Nova Scotia lobster fishery uses considerably fewer traps per ton landed:

Lobster landings in 2018 in Maine and Nova Scotia
Lobster landings, licenses, and trap limits in Maine and Nova Scotia in 2018. Note that Maine recorded 2,846,869 trap tags, this table calculated a theoretical potential trap limit. Data aggregated from maine.gov; this.fish.com; dfo.ca.

But what is gained in fewer traps is lost in social consequences. In Nova Scotia, “licenses are being sold for over one million dollars apiece and they no longer have a multi-generational feeder into the fishery,” explained Wilson. There has been an inevitable consolidation in Nova Scotia’s lobster fleet that resembles the most extreme examples of a quota management format simply due to the trap constraints and the relative value. Some of the hostility reported recently between indigenous and non-native fishers in Nova Scotia is possibly related to this fishery structure that produces clear winners and losers.

Wilson’s research on trap density in the Maine lobster fishery has shown that fewer traps do not necessarily equal reduced fishing mortality. “We found even under scenarios where you did try to reduce the number of traps in a given area, fishermen will still try and fish to the highest abundance areas, and will still cluster their traps. You can still have high density traps with a reduced trap situation. They are hitting the center of the target, regardless of the number of traps, and if that target gets oversaturated then the areas that are not the center of the target become as profitable as the center of the target.” Nova Scotia illustrates this phenomenon where fewer traps have not yielded a lower catch, but have led to fewer lobstermen reaping the financial rewards.

A lobster boat going out to sea
A Maine lobster boat going out to sea. | Shutterstock

Rope Reductions

Reducing the number of traps in the water might not be realistic, but minimizing vertical lines and rope overall, as well as improving break-away technology, could be a compromise that reduces right whale entanglements and preserves the socioeconomic fabric of coastal Maine. “Trawling up” – the term for connecting more traps together by daisy chain or other means, such that multiple traps are accounted for by a single vertical line and buoy in the water column – is one practical measure already mandated in state and federal waters, as are break-away gear requirements. Weak links are designed to be the breaking point in the line if a whale becomes entangled and they must be selected from an approved list of gear, mandated by NMFS, and the strength of these links is defined based on management area.

A graphic example of an offshore lobster fishing gear configuration to minimize entanglement risk with break-away lines, sinking groundlines, and multiple traps per buoy
An example of an offshore lobster fishing gear configuration to minimize entanglement risk with break-away lines, sinking groundlines, and multiple traps per buoy. Bycatch.org

Such management strategies could become more precise, and research is underway to better inform policy makers. Willse’s PhD research, funded by the Maine Department of Marine Resources and awarded by NOAA to Dr. Yong Chen, is one such example. Willse measured the breakaway strength of Maine lobster trawls to see if they are, on average, within NOAA’s specifications. “One assumption we had was that industry were using stronger lines than they really needed to, which was not exactly the case so far. The load on the line was around the limit proposed by NOAA, and while the strength of most of the lines themselves have been higher than the 1,700 pound test recommendation, inshore fishermen should be able to safely bring their gear into compliance relatively easily with a few modifications.” This is important research because as Willse noted, “there had been no clear information on this subject before and stakeholders were operating on assumptions.”

However, Willse also explained that, “the diversity within the lobster fleet means that certain policies to, for instance, reduce lines by stringing more traps together, cannot necessarily be applied because of weaker vessels that are already fishing at capacity and cannot operate with heavier lines and traps.” Nonetheless, a regional or vessel size trawling up policy to minimize vertical lines is a realistic strategy that could be expanded.

Is the lobster fishery being picked on?

Some lobstermen might feel that they could have told you the results of Willse’s study. No one would question the value of such research, but the sentiment within the industry is that Maine lobstermen have been as compliant as possible for decades, taking any new whale mitigation policy in stride and prosecuting a sustainable fishery. On a recent webinar titled: “Sustaining a Fishery and Its Habitat: The Maine Lobster Industry & Right Whales” this mentality was clear as the speakers spent the hour promoting Maine’s lobster industry, explaining the measures they were already taking to avoid right whales and how essential the integrity of the lobster fishery is to life in coastal Maine. Curiously, the MSC certification suspension was not mentioned until forty-eight minutes into the sixty-minute webinar, and it was quickly explained as a temporary blip that would be corrected once a scientific assessment was completed.

This confidence is justified from the perspective of the fishery’s resource which has been carefully preserved. Policies like protecting egg-bearing females through tail notching, strict minimum and maximum size limits, bait regulations to prevent any new diseases from entering the Gulf of Maine, no wet storage of lobster gear and biodegradable trap panels are all sophisticated strategies that have facilitated a healthy fishery for a long time. Add these measures to all of the whale mitigation strategies and you have one of the most carefully regulated fisheries in the world. In 2020, gear marking requirements were expanded to require all Maine lobster gear be colored purple to better identify it on entangled whales.

For Maine lobstermen, purple gear marking is just another new mandate in a long list of robust requirements, but it also represents an opportunity for exoneration. The vast majority of Maine lobstermen will never entangle a right whale, or even hear about an entanglement first hand. “The reality is any fisherman you talk to; odds are they have never been responsible for a whale entanglement. I totally understand where their skepticism comes from,” said Hayes. Patrice McCarron, Executive Director of the Maine Lobstermen’s Association, proclaimed that, “the Maine lobster fishery has not been linked to the entanglement of a right whale in over 15 years.” The purple gear marking mandate is viewed as a definitive opportunity for Maine’s fleet to disassociate with any entanglements that occur because they truly feel that the whales are not in their waters. “[Maine lobstermen] seem to agree that the whales are not really in the Gulf of Maine, which is a very hotly debated topic. There is a feeling that things are blown out or proportion,” said Willse. “A lot of these guys have been dealing with the right whale problem for many years and it never seems to get any better. So, at a certain point they start to think its not even about the whales anymore.”

What do you say to lobstermen that don’t believe their gear is affecting right whales? It’s a question that marine mammal experts must consider constantly:

The main thing I would say is even 1 mortality a year is actually too much for this species; the limit is 0.9 serious injuries or mortalities per year. Currently we are probably getting 3 to 6 if you look at the unobserved mortalities each year. Six in a year is way too many; but we have millions of lines out there. The chance that any individual fisherman’s line is going to seriously injure or kill a whale might be low, but because there are so many lines out the encounter opportunities are high so that every year, some fishermen’s lines are injuring whales. We can’t predict exactly which lines, where or when because right whales are shifting, and they are hard to spot unless they are aggregated for feeding or socializing. So it is true that the majority of fishermen will never entangle a right whale. But only a few of them have to each year for it to be too much for the population to sustain.

Colleen Coogan

Because almost the entire right whale population is photographed multiple times throughout the year, we can actually see new scar injuries from entanglements. Roughly 100 animals, or 25% of the population, shows fresh entanglement injuries every single year. We observationally typically see zero of those events as they are happening. On average, we actually see an animal with gear on it 1.2 times/year. We recovered Canadian snow crab gear off of a right whale near Georgia – they can haul it thousands of miles and this is sort of the issue for the fishery too: ‘we don’t believe you; how do you know it is our gear?’ I totally understand where they’re coming from and the reality is any fisherman you talk to, odds are they have never been responsible for a whale entanglement. Any one of those fishermen may go their entire lives, maybe even their children and grandchildren after them, without ever being responsible for an entanglement. But from a whale’s perspective, 100 entanglements are happening every year and we’re estimating roughly 20 animals are dying in the population every year from a mixture of entanglements and ship strikes.

Sean Hayes

Vessel strikes are a serious threat to right whales that have not been publicized as often as entanglements. “If you look at just the conclusive results of the necropsy events when you actually get a whale and forensics scientists can analyze it, about 50% of the confirmed causes of death are ship strikes, and about 50% are entanglement,” said Hayes.

Offshore wind projects near Massachusetts, in sensitive habitat areas where right whales feed and congregate in great numbers, might increase the chance of these interactions. “We have just seen recently that there have been a couple of additional vessel strikes that were confirmed and the sound impacts from building wind turbines are likely impacting these animals. I don’t know if it is causing mortality or additional stressors, but the noises from building wind turbines needs to be considered,” worried Kerns.

“Shipstrike is still a very real issue and it’s one of my biggest concerns with wind farming,” agreed Hayes. “Each wind turbine area might have as many as 50 vessels doing maintenance on it in some spots. That is a new stress that is coming and we’re going to have to manage along with these other threats.”

This is a point of contention for the fishing industry – if 50% of the unusual mortality events are linked to vessel strikes, then why does it seem like the most impactful policy changes are being levied on the fishing industry? In reality, shipping channels and other marine activities like wind turbine construction include very specific guidelines and do require environmental impact statements that take heed of the Marine Mammal Protection Act (MMPA). Sometimes, the perception is that the fishing industry is the only stakeholder group that must adjust its behavior to avoid whales, but that is not the case in the northwest Atlantic Ocean.

The fifty-fifty distribution between vessel strikes and entanglements is also slightly misleading. “We have a secondary criterion called ‘serious injury’ under the MMPA where you see an animal and it is basically a technical term for ‘dead whale swimming’,” explained Hayes. “You see the animal, you see its very seriously injured, but you never see it again. The vast majority of serious injuries are entanglements. We think the reason we never see them again is because they are compromised in their ability to forage, and we think they essentially swim until they can’t swim anymore and then sink and disappear because they become so skinny.” Vessel strikes will attribute more devastating wounds, either by obliterating the whale in the case of a cruise ship moving at 20 knots, or by lesser but equally fatal blunt force trauma caused by a smaller vessel. In the latter, more common vessel strike example, the seriously injured whale would die faster than in the slow entangled starvation scenario. A quick death would mean the whale’s carcass still has buoyancy from the blubber, and decomposition would initiate with the bacteria in the whale’s gut to ensure the carcass floats, thus raising the chances it can be identified. This would be a very different carcass than an entangled whale that died with an empty stomach and minimal blubber, and Hayes believes this skewed right whale death statistics disproportionately. “While we think the necropsy events where we actually recover a carcass are fifty-fifty in terms of ship strike mortality, entanglement is probably a greater threat for the animal overall.”

Even if Hayes’ hypothesis is incorrect, the Maine lobster fishery is much easier to modify with a single set of policies than the complicated web of domestic and international shipping channels along the eastern seaboard of North America. Focusing on lobster fishery gear restrictions is the low hanging fruit from a tree with many higher, out of reach branches.

It really is just a matter of the percentage of lines out there. Nearly 95% of all the vertical lines along the Atlantic seaboard in waters where right whales occur are fished in the Northeast area and fished by the lobster and Jonah crab trap fisheries. That’s the reason that when trying to write a rule quickly – and in the U.S., 2 years is fast – we didn’t want to take on all the commercial fisheries at once. The next step will be to work with the other fisheries to come up with recommendations.

Colleen Coogan
A right whale fluke just out of the water
A right whale fluke. | Shutterstock

The future of sustainable lobster certifications in the U.S. and Canada is unclear

Our conversations with experts on this issue revealed that there is no obvious policy solution to the right whale problem and no systemic examples of misbehavior to highlight. Lobstermen and marine mammal scientists are working together with other stakeholder groups on the Atlantic Large Whale Take Reduction team in a cooperative manner. As Curt Brown, a marine biologist and Maine lobsterman joked, “all of my pants are now purple” after meticulously marking his gear to comply with the new mandate.

When the goal is to reduce whale deaths from six per year to less than one per year, maybe there is just only so much we can do across thousands of miles of coastline with millions of miles of rope in the water, and busy shipping channels that cannot be interrupted.

Then why is the Gulf of Maine’s MSC certification the only lobster certification within the right whale habitat range to be suspended so far?

There are 5 other MSC certified Homarus americanus fisheries, all in Canada, and all in the increasingly relevant habitat range of North Atlantic right whales. Yet none have been suspended. Based on our investigations, there are no active lawsuits or major reports looming from Canadian eNGOs regarding Canadian lobster fisheries and right whales. This detail is a critical distinction, as the lawsuit Center for Biological Diversity v. Ross, filed this past April, triggered the MSC suspension for the Gulf of Maine lobster fishery. The case found that NMFS failed to include an “incidental take statement” for North Atlantic right whales. As a result, U.S. District Judge James Boasberg found the U.S. lobster fishery to be in violation of the Endangered Species Act (ESA). The Center for Biological Diversity has been active in other whale entanglement lawsuits, most recently against the California Department of Fish and Wildlife for failing to avoid migrating humpback whales with the prosecution of the state’s Dungeness crab fishery, and claiming the same violation of the ESA. Such a precedent has not been recently established in Canadian courts.

Another distinction for U.S. lobster fisheries is the complicated interaction between the ESA and MMPA. An “incidental take permit” can be authorized under the ESA to allow a small, measured, take of an endangered species that will not jeopardize the continued existence of the endangered species. However, the MMPA has a different standard for incidental take, Coogan explained that before issuing a take authorization for a mortality or serious injury, “we have to issue something called a ‘negligible impact determination’ and for right whales. That is a tiny number, certainly a smaller number than the average deaths we are currently estimating each year. We would have to demonstrate that an action will not cause a serious injury or mortality more than once every nine or ten years to make a negligible impact determination. Without this negligible impact determination, we cannot authorize mortality or serious injury under an incidental take statement.”

In August, when the Gulf of Maine MSC suspension was announced, the Maine Certified Sustainable Lobster Association (MCLSA) responded that the suspension would be contested. “Although we don’t have any direct role in the outcome of this federal case and the ultimate impact to our industry, we are confident we will regain MSC certification through our ongoing efforts to uphold the highest standards of sustainability,” MCSLA President Craig Rief said. Three months later there has been no change in the suspension, and a new biological opinion from NOAA which the MCSLA hoped would help its cause is still pending. It seems unlikely a negligible impact determination can be proven.

In Canada, the Species at Risk Act (SARA) can allow incidental take of at-risk species if the activity is deemed as only incidentally affecting the species at risk. The expectations are defined similarly to those in the ESA, however the Minister of Fisheries and Oceans ultimately determines these authorizations. He or she can have profound effect on the interpretation of the Fisheries Act, as we reported last summer with the passing of Bill C-68 which reinforced that authority. There are pros and cons to ministerial discretion, but it does allow for potentially politicized decision making on fishery policies.

Jake Rice wondered if Canada’s response to the right whale problem might reflect some of the political flexibility included in SARA, and the complex socio-economic considerations of the region. “In Atlantic Canada, supporting jobs and employment in rural communities is much more important than the value of the catch. If they know that they cannot deny right whale mortalities is an issue in Canadian waters, then they can point to the snow crab fishery closure as a high-profile action taken to address the problem, which has a much lower community level impact than alternative policies.” Closing the lobster fishery would be an alternative policy with a much broader community impact. On the other hand, while the snow crab fishery in the Gulf of St. Lawrence is valuable, it is relatively young and is far smaller than the lobster fishery that shares its waters. The highest recent quota for southern Gulf of St. Lawrence snow crab was 43,822 tons set in 2017. In 2018, the MSC recorded 72,921 tons of lobster landed in those same fishing zones. In 2018 the southern Gulf of St. Lawrence snow crab fishery included only 450 individual licenses, whereas the neighboring lobster fishery included 4,152 licenses.

In June, when the DFO closed over 40 grids in the Gulf of St. Lawrence to trap fisheries for the season, it also applied to lobster gear, but the snow crab fishing zones were disproportionately impacted. To its credit, the DFO has expanded area closures and worked to become more dynamic in its whale mitigation responses and has not discriminated in its policies between snow crab and lobster gear. But sustainability ratings and the reporting on entanglement issues have not been evenly distributed between the two fisheries. For example, in 2018 the MSC suspended the Gulf of St. Lawrence snow crab fishery’s certification, but the MSC certification for lobster remains intact for the same fishing grounds.

Snow crab gear is thought to be much more dangerous to right whales than lobster gear. In 2017 and 2019 when a combined 26 right whales were found dead in Canadian waters, “Canadian snow crab gear and vessel strikes,” were considered the primary causes, according to NOAA. There is no question that reducing rope and vertical lines in the snow crab fishery is a positive policy change for right whale conservation.

However, Gulf of Maine lobstermen might argue Canada’s snow crab fisheries have shielded Canadian lobster fisheries from a justifiable degree of scrutiny. While snow crab gear can cause more serious entanglements than lobster gear, every marine mammal expert we spoke with said fewer lines in the water column is the best deterrent to right whale deaths at this time, more important than a strategy that only focuses on the strongest lines. By this logic, the same complications with the ESA that triggered the MSC suspension in the Gulf of Maine should apply in Canadian waters with SARA, suspending those lobster MSC certifications too – especially considering far more UMEs have been reported near Canada’s lobster fisheries than the Gulf of Maine.

But the Canadian snow crab fishery provides a unique policy strategy opportunity. Rice explained, “if Canada acknowledges it has a problem and has a strategy to address it and the components of the strategy have some evidentiary basis, that becomes a formal strategy with a much higher potential MSC score. From there you would have to demonstrate the whole strategy is not working and that managers are not adapting the strategy as they get feedback on its effectiveness.” Canadian fishery managers have acted by closing fishing zones in the Gulf of St. Lawrence and by getting snow crab gear out of the water early and suspending the rest of the season. Maine cannot check that box, there is no snow crab fishery in the Gulf of Maine that can be closed as part of the state’s “strategy.”

What happens next?

The market is unlikely to accept a substitute for Homarus americanus, at least not for most applications. American lobster is a beloved institution around the world, synonymous with celebrations, luxury, and quality. But in New England especially, American lobster is central to the identity and cuisine of the region. A seafood counter or steakhouse in Boston without a live tank of lobster is unimaginable. Stores and restaurants in Florida and California might be able to switch local spiny lobster landings into some applications, but neither could account for a fraction of the lobster tonnage required, even at peak season. American lobster is landed year-round, handles well shipped live on all forms of transportation, and features claws that boost its yield and culinary versatility over tail-only lobster species. At the Port of Los Angeles Lobster Festival, adjacent to waters known for California spiny lobster, Homarus americanus, not Panulirus interruptus, was the unquestioned star.

Inflatable American lobsters, not California spiny lobsters, welcomed patrons at the Port of Los Angeles Lobster Festival in 2012. | Lobsterfest

This situation may also bring more criticism to the MSC standard. Threatened species under MSC’s Principle 2 are subject to the management country’s laws and regulations which leaves some ambiguity between Canadian and U.S. management strategies. Canada has the advantage of pointing to specific area closures and an emphasis on reducing the snow crab fishery as a clear management strategy, while Maine cannot do anything equivalent. That distinction has awarded Canadian MSC lobster fisheries and penalized the Gulf of Maine. Ironically, the U.S.-based Monterrey Bay Aquarium Seafood Watch program still rates most lobster fisheries as “Good Alternative” while the Vancouver Aquarium’s Ocean Wise program has boldly rated all Homarus americanus fisheries as “Not Recommended.”

Lobster from the Gulf of Maine MSC certified fishery can maintain valid chain of custody certification (including in-store blue check labelling) if the product was harvested before August 30th, 2020. With the holidays looming, and the critical Chinese New Year lobster sales period shortly after, retail stores globally will be stocking seafood displays with frozen lobster meat and tails, much of which were harvested, processed and purchased before that deadline. If right whale entanglements continue (two more right whale entanglements were recorded as we wrote this story), and the media continues to amplify its distressing headlines, it’s only a matter of time until conservation groups bring the ire of their donors down on supermarkets, restaurants, and the MSC. Do you want to save the whales or your lobster roll? Whether it’s fair or not, the next few months could be critical in how stakeholders frame the conversation and win public support.

Jack Cheney

Jack Cheney

Jack has sourced, sold, cooked, and sustainably certified seafood over the past 9 years. In addition to his contributions to Sustainable Fisheries UW, he is working to connect chefs with US fishermen to create more value for both ends of the supply chain. He earned a Master's in Marine Affairs from the University of Washington in 2015.

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