State and federal regulators say they are prepared to enforce the 967-square-mile area of the Gulf of Maine that will be closed to traditional lobstering for the next three months but have been tight-lipped about what the enforcement will look like or what the penalties might be for anyone who is found in violation of the closure area.
Environmentalists, who support the closure designed to help protect critically endangered North Atlantic right whales from becoming entangled in lobstering gear, say the lack of details isn’t surprising, but Maine lobster industry officials are frustrated by the silence.
According to Patrice McCarron, executive director of the Maine Lobstermen’s Association, the industry is still grappling with trying to understand why the area is even going to be closed in the first place. The closure goes into effect Oct. 18.
“Now it’s happening and we’ve had zero correspondence on what the rules of operation will be, what the enforcement will be,” she said. “The entire closure has literally fallen from the sky, and we’ve been given very little information and (told) to get out of there. … Everything I’ve seen is Oct. 18, here’s the box (outlining the closure area), get your gear out.”
‘ALPHABET SOUP’ ENFORCEMENT
Last month, the National Oceanic and Atmospheric Administration released a new set of rules for New England’s lobster fishery aimed at reducing the risk to North Atlantic right whales by at least 60 percent. Scientists believe there are only about 360 right whales left worldwide, though lobster industry members contend they aren’t seeing the whales in Maine waters and aren’t responsible for their declining numbers.
The closure, which is located about 30 miles offshore and stretches from about Mount Desert Island down to eastern Casco Bay, will be patrolled by Maine Marine Patrol, the U.S. Coast Guard and the NOAA Office of Law Enforcement.
According to Allison Ferreira, a spokesperson for NOAA’s Greater Atlantic region fisheries office, the area cannot be marked due to its location in open ocean, but fishermen are given the coordinates so they know where to steer clear of.
The agency declined to answer any questions about possible penalties for violating the closure area because “that is subject to the circumstances surrounding the infraction.”
Generally speaking, though, “our law enforcement staff focus on education and outreach vs. violations,” Ferreira said in an email. “We want to ensure fishermen fully understand the rules before we go down the violation route.”
Ferreira wouldn’t say exactly how the agency will evaluate violations or which acts might be used when issuing penalties, but pointed to the Magnuson-Stevens Fishery Conservation and Management Act, which provides the authority to manage U.S. marine fisheries.
The law provides four basic enforcement remedies for violations, depending on severity, and includes the issuance of a warning, usually after the first offense, and then assessment of a civil financial penalty. For certain violations, the agency may pursue judicial forfeiture action against the vessel and its catch, permit sanctions or initiate criminal prosecution of the owner or operator.
It’s unclear exactly which statutes might come into play for violating Maine’s closure, but the maximum penalties for violating the Endangered Species Act, the Marine Mammal Protection Act and the Magnuson-Stevens Act are $52,596 per violation, $29,596 per violation and $189,427 per violation, respectively.
Gib Brogan, senior campaign manager at marine conservation nonprofit Oceana, said he isn’t sure how federal officials make the decision on which statute to use, but that he’s “seen cases brought under the whole alphabet soup of acts.”
A right whale raises its head out of the water in the Bay of Fundy. Photo by Moira Brown/courtesy of the New England Aquarium
COMPLIANCE TYPICALLY HIGH
Brogan said that based on how other closed areas have been managed in other fisheries, he expects this closure to be effectively enforced.
“NOAA law enforcement, with the Coast Guard and the states … do a very good job of enforcing these regulations,” he said.
Erica Fuller, senior attorney for the Conservation Law Foundation, agreed.
“It’s typical of enforcement efforts everywhere, they don’t tell the regulated people how they’re going to enforce it,” she said, but “if the past is any indicator, I’m optimistic.”
Other New England closure areas, including one nearly three times the size of the one ready to open in Maine, have gone well and have a high degree of compliance, she noted.
Sean Mahoney, the foundation’s executive vice president, said enforcement for the Maine lobster fishery will likely be even easier than for other fisheries.
“For some other closures that are closed to mobile gear, enforcement is a little harder because they’re moving their gear, they’re dragging,” he said. “For the pot fishery, like lobsters and crabs, you’re setting your pots. It’s pretty clear what the latitude and longitude is for the closed area. … I think they will be enforcing these very strictly, particularly in the beginning.”
But McCarron, director of the lobstermen’s association, said other closures aren’t a fair comparison.
For example, one large seasonal closure in Massachusetts has up to three-quarters of the whale population pass through. It’s tough to lose any ocean bottom, McCarron said, but “you can feel good as a fisherman knowing that you got your gear out of the way.”
It’s not the same in Maine, which doesn’t have the same high level of sightings, she said. Plus, the fishery reopens once the last whale swims out of the area, instead of on a set date like with Maine’s impending closure.
“I understand that we’re not the first closure, but we know this is different,” McCarron said.
MARINE PATROL READY
And although it’s not the first seasonal closure for NOAA officials, it is the first one for the Maine Marine Patrol.
Jay Carroll, colonel of the marine patrol, said there’s an “unknown factor” heading into the seasonal closure.
“A huge closed area hasn’t happened (in Maine) before,” he said. “We’ll have to work to adapt, and figure out how everyone’s going to coexist around that closure.”
That said, the agency isn’t doing anything in particular to prepare and it will be enforced like any other area, he said, adding that enforcement guidelines will come from the federal level.
“There are so many lines drawn within the ocean,” he said. “Operationally, this agency is very capable of handling what’s on its plate. I don’t anticipate it will be a problem.”
According to federal officials, the closure will directly affect roughly 60 lobstermen in the restricted area and another 60 who might be affected by the others relocating, but not the vast majority of lobstermen, who fish closer to shore.
For those who do fish in the restricted area, officials expect the closure will cost 5 to 10 percent of their total revenue each year.
Lobstermen who fish in the area, though, say the estimates are grossly off the mark. They say revenue losses for those affected could be closer to 50 percent. Lobster harvesters who don’t fish in the area have also expressed concern that there will be more gear conflicts and a revenue loss when lobstermen who normally use the restricted area are pushed into territory where they don’t usually fish.
The plan does allow for buoyless or “ropeless” fishing – a new and experimental technology that brings lobster traps to the surface using acoustic signals – but the technology has not been tested in Maine. It will require a special permit from the state Department of Marine Resources.
MOST WILL FOLLOW RULES
Maine Public reported Tuesday that a North Atlantic right whale videotaped a few miles off Portland Harbor last month is considered by NOAA to be a “definite” right whale sighting and that it will be entered into the national catalog of confirmed sightings.
Amy Knowlton, a whale expert with Boston’s New England Aquarium, believes the white scar tissue seen on the whale’s flukes indicates it had at some point become entangled in fishing gear, according to the report.
NOAA officials estimate that about 85 percent of right whales show signs of entanglements, though there is often no way to know where those entanglements occurred.
Mahoney, of the Conservation Law Foundation, which has locations in Boston and Portland, said the closed area is a positive for the whales and a small price to pay for the fishery.
“If you’re going to balance the extinction of a species, particularly one as iconic as the North Atlantic right whale, preventing that extinction is worth closing the area and having the impact that it may have” on the roughly 60 to 70 lobstermen who fish out there.
Despite their frustrations, McCarron said she expects lobstermen to follow the rules.
“I have always seen fishermen be upset about whale rules and I’ve always seen really high compliance,” she said. “This is unbelievably frustrating; they’re angry about it and (they) don’t understand why this area is being closed. I share all those feelings. But in my experience, despite all the anger, our compliance has been well over 90 percent. I would suspect that the guys are going to do the right thing.”
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