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Fishing gear experiments continue as entanglement lawsuits loom over NMFS

Gulf of Maine - Fishermen and government researchers in the US have been collaborating to develop whale-safe fishing gear, but according to some members of that fragile partnership, law suits could jeopardize those joint efforts. 

Three conservation organizations say government agencies are violating the US Endangered Species Act (ESA) by doing too little to prevent fishing gear entanglements of highly endangered North Atlantic right whales. They say they want faster action to save the species from extinction. 

A suit filed on May 1 by Greenworld, activist Max Strahan's Massachusetts-based whale conservation advocacy organization, alleges that the National Marine Fisheries Service (NMFS) and and Maine Department of Marine Resources (DMR) are violating the US Endangered Species Act and the Marine Mammal Protection Act by allowing the use of fishing gear known to entangle right whales. The suit seeks $100 million in damages that Strahan said his organization would use for right whale conservation. 

Strahan brought a similar suit against the state of Massachusetts in 1996. A resulting court injunction required the state to consider additional fishing regulations, which prompted gear modifications and fishing bans within critical right whale habitat areas of Cape Cod Bay when the whales are present. The suit is still active with subsequent motions filed last winter. 

In March, two other organizations, the Conservation Law Foundation (CLF) and the Humane Society of the United States (HSUS) filed separate letters of intent to sue NMFS, stating that the agency is violating the ESA by taking too long to address right whale entanglements. Neither organization had followed up with further action by early May. 

NMFS Biologist Doug Beach acknowledged that the agency's pace has lagged on the issue, citing a lack of resources in the Northeast Regional Office. NMFS' 2000 budget includes $4 million for right whale conservation. Of that amount, $750,000 has been designated for gear research, but Beach said the regional office has yet to receive its share of those funds from the agency's headquarters. 

Potential Entanglement points for gillnet gear
(Detail - click for full picture)

A dying breed 

Whale biologists estimate the population of North Atlantic right whales at no more than 350 animals. They say the species is reproducing too slowly to compensate for an average 2.5 annual deaths resulting from human activities in addition to natural deaths. At this rate, they predict, the species will become extinct in about 200 years. 

Entanglement in fishing gear - usually lobster gear and sink gill nets used to catch groundfish - is the second most frequent human-induced cause of right whale deaths following collisions with ships. About two-thirds of North Atlantic right whales have scars indicating that they have been entangled in the past. While many apparently are able to free themselves, some suffer serious consequences. 

Potential entanglement points of lobster gear
(Detail - click for full picture)

Experts believe that vertical lines and buoys on lobster or gill net gear get caught in a whale's mouth as it feeds. Knotted ropes can also snag on an animal's flippers or tail. As the whale attempts to free itself by rolling or twisting, lines can wrap around its body. Gear on an entangled whale can also catch on other objects the whale encounters in the water. 

Members of a whale disentanglement network, on call throughout the Gulf of Maine to release ensnared whales, note that they are not always successful in removing gear. They say prevention of entanglements is crucial. (See "Right whale rescuers expand disentanglement efforts in the Gulf," Gulf of Maine Times, September 1999.) 

Entanglement-caused injuries can result in death or, if the whale is unable to dive and feed properly, it can starve. Few right whales that become entangled actually die as a result, but whale experts say even seemingly minor entanglements can become dangerous by causing infections or wrapping more tightly over time, possibly cutting into the whale's flesh.

Pressure for solutions 

The grisly entanglement death of a right whale found floating off the New Jersey coast in October was a grim illustration of the fact that entanglements are still a significant problem despite some efforts in recent years to change fishing practices, according to Scott Kraus, Director of Research for the New England Aquarium in Boston. The loss of the whale was also a final straw for those frustrated with the pace of the National Marine Fisheries Service's efforts to prevent entanglements, he said. 

Priscilla Brooks, Marine Resources Project Director for CLF, acknowledged that gear research takes time. She said her organization's complaint with NMFS is that the agency has been too slow in allocating money for that work."We feel that we've got to get a lot more aggressive in dealing with this issue and we don't feel that NMFS has been that way. We truly feel that this is a crisis," she said. 

Some describe legal action against agencies as counterproductive to saving whales. "Yeah, NMFS has to pay attention to it but at what loss to what other programs," said Terry Stockwell, Community Liaison for Maine's DMR. "I'm tired of seeing the fisheries service bashed for failing to implement [whale-saving measures] on time, when all they can do is answer legal briefs." 

Others believe that looming legal action provides NMFS with the motivation - or the excuse - it needs to make unpopular decisions, such as enacting additional restrictions on fishing. NMFS faces heavy political pressure from fishermen who have often said they think of themselves as an endangered species. Fishermen worry that legal action against NMFS could lead the agency to implement ultra-restrictive regulations that would jeopardize their livelihood. 

If that happens, they say, the current cooperative spirit that exists in gear research will evaporate."If decisions are made in these lawsuits that hurt the fishermen, I think you'll see a disenfranchisement with the fishermen with this whole program," said Bill Adler, Executive Director of the Massachusetts Lobstermen's Association.

Asking the experts 

When NMFS first proposed fishing gear regulations intended to reduce right whale entanglements three years ago, angry fishermen blasted the changes as unworkable and said some of the gear changes would actually promote whale entanglement. They berated NMFS officials for leaving them out of the process of developing the proposal. 

Relations began to improve when the agency sought fishermen's advice and cooperation in redrafting the rule. Conservation organizations were not pleased with the new version when it came out, however, and they say that the fact that whales are still becoming entangled shows that the regulations are not working. 

Dan McKiernan, Coordinator of the Massachusetts Right Whale Conservation Program for the state's Division of Marine Fisheries (DMF) disputes this conclusion asserting that more people are reporting entanglements than have in the past, but that does not necessarily mean that entanglements are occurring more frequently. He also said that new gear designed to break more easily may leave small pieces of gear on whales, which may technically be considered entanglements even if the whales are "not suffering serious injury or mortality." 

In the mean time, Glenn Salvador, Outreach Coordinator for NMFS and a former lobsterman and gill-netter himself, has involved fishermen in attempting to develop new types of lobster and gill net gear that are effective for fishermen and safe for whales. Researchers at universities and at the Center for Coastal Studies (CCS) in Provincetown, Massachusetts are also involved. 

Some fishermen are also testing different systems for marking gear to identify its point of origin in case it can be removed from an entangled whale. "It will help us to focus in on what fisheries the problem seems to be coming from, and possibly what areas," said Salvador. NMFS is covering most of the cost of developing and testing the experimental gear, including funding research taking place at area universities and providing small research grants of $200 to $300 to fishermen with good ideas, said NMFS' Beach. The Massachusetts Environmental Trust has funded some gear research in that state. In addition, said Salvador, inventive fishermen throughout the Gulf have "also tried rigging stuff up with their own gear."

Weak links and breakaways 

So far, much of the US research has focused on developing "weak links" or "breakaways" in lobster and gill-net gear. These are connections between pieces of gear or sections within ropes or lines that a whale could break, but that would withstand typical fishing conditions. 

A buoy with a plastic link designed to
break under the force of a swimming
whale.  Lobster fishermen are working on 
developing means other than knots (which
can get caught in a whale's mouth) to
attach the weak link to the buoy.

If the gear breaks too easily, not only is the fisherman likely to lose equipment and his or her catch, but the now free-floating "ghost gear" also presents an additional hazard to marine mammals. In April, the Massachusetts Lobstermen's Association began removing existing ghost gear from Cape Cod Bay as part of a project funded by the International Fund for Animal Welfare and supervised by the Massachusetts DMF and the state's Environmental Police. 

Gill nets are being modified with two experimental features designed to reduce whale entanglement. First, the line at the top of the net is made of a material that floats on its own to eliminate the need for the buoys that appear to be so problematic for whales. This line is also made with spliced-in pieces that have a lower breaking strength to allow a whale to break through the line. 

Fishermen are also testing breakaway devices for lobster gear, including weak links connecting buoys to the lines on lobster traps. Theoretically, as a whale pulls against the line, the buoy will pop off of its plastic swivel rather than getting stuck in the whale's mouth. But even if the buoy pops off, "There's still a loop that could still get stuck in the baleen," noted Patten White, Executive Director of the Maine Lobstermen's Association. He said lobstermen have been working on ways to attach the line to the swivel without knots. 

Whale biologists believe the vertical buoy lines that connect buoys to lobster traps and are used for hauling the traps out of the water are especially problematic for whales. Several experimental systems would eliminate these vertical lines, or would use lines so weak that whales could easily break them. But either system must provide some other means of hauling the gear out of the water. Gear researchers have tried several ideas, but have yet to develop a mechanism that fishermen believe would work under typical fishing conditions. 

One experimental system was designed to remove the vertical line and the buoy from the water at all times, except when the lobsterman is in the process of hauling the gear out of the water. As part of this "acoustic release system," a fisherman at sea would transmit a coded signal to release a pop-up buoy and hauling line from a canister attached to his or her underwater lobster gear. But fishermen panned this set-up, explaining that they would be likely to set their gear on top of another fisherman's without visible markers.

Calling all innovators 

"It's incredibly difficult, I think, to solve the problem, and at the same time not put our fishermen out of business, however, I don't think that it's impossible," said NMFS Fisheries Engineer Al Blott. He said the numerous ideas being tested come from a variety of sources including fishermen, gear engineers, and whale biologists. "We don't have any preconceived notions of what will or will not work." 

"We need as many minds and as many types of minds as possible. We need even backyard inventors," added Dave Wiley, an adjunct scientist at CCS. Wiley noted that he has also approached marine technology industries to see if they have any ideas to offer. 

Those involved in gear research agree that the solution does not lie with a single invention, but with a variety of approaches tailored to the needs and characteristics of fisheries in particular regions. A single type of gear will not necessarily work in every part of the Gulf. In Cape Cod Bay during the winter and spring, lobstermen are required to use sinking line that lies on the ocean floor, instead of the traditional floating line that connects one lobster trap to another, which can bow up between traps creating a potential whale-catching loop. 

But when Maine lobstermen tried the sinking line, it chafed and snagged on their region's rocky bottom which is very unlike the sandy floor of Cape Cod Bay. They say a promising alternative for Maine is a "neutrally buoyant" line that hovers just above the ocean floor, out of the way of right whales and rocks. 

Tidal strength also affects what kind of equipment can be used in different areas. NMFS representatives will be working with a group of gill net fishermen in Digby County, Nova Scotia this summer to see if breakaway gill net gear being tested in the US can withstand the Bay of Fundy's extreme tidal conditions. 

While the Canadian government is not involved in gear modification research, its proposed right whale recovery plan, expected to take effect this summer, calls for measures to reduce entanglements. Hubert Saulnier, Chair of Gill Net Sector of Maritime Fishermen's Union, Local 9, said he and his colleagues are not necessarily concerned about possible new gear regulations, but would like to be prepared. And, he said, "We don't like catching whales and we don't like to have our gear torn apart by them either." 

East Coast Ecosystems (ECE), a whale conservation organization based in Freeport, Nova Scotia, is coordinating the Digby County project, which is funded by World Wildlife Fund-Canada. ECE Education Coordinator Deborah Tobin said she chose to work with Saulnier's group because of their demonstrated interest in right whale issues, and she hopes the collaboration will set an example for other fishing groups. 

Fishermen, who typically replace gear as it wears out rather than all at once, note that any entanglement prevention solutions will have to be made affordable, either through a gradual phasing-in of the new gear, or through a subsidy program. "I wouldn't have any qualms about switching over to this stuff," aside from the cost of doing so, said Geordie King, a gill-netter who fishes out of Portsmouth, New Hampshire, and has been testing a modified gill nets for several months.

Hope in technology 

For some, hope for whales and fishermen lies in the possibility that some sort of biologically soluble rope could be developed that would be durable enough for normal fishing use, but would begin to break down on contact with a whale's oily skin, similarly to the way surgical stitches dissolve.

This would more completely address the problems caused when whales encounter lines said Wiley, who explained, "We know animals can break lines that are fairly strong, but we also know that animals are dying even after they've broken free from those things." If the piece of the line remaining on the whale decomposes, the animal stands a much better chance of survival, he said. 

Optimists including Dave Mattila, Senior Scientist at CCS, believe a solution to the problem of whale entanglement exists. "Our goal is double zero: zero mortalities and zero fishermen out of work, and I think we can do it," he said. Stockwell also believes some answers will emerge through technological development, but he describes the entanglement problem as overwhelming. "The more we look into it, the less some of us feel we know, other than that we know the population of whales is going down and we know there's mortalities and it's got to stop."