Right whales, reasonable minds

Those who lived through the National Marine Fisheries Service hearings three years ago on proposed right whale protection rules remember well the panic and anger expressed by fishermen who felt NMFS was going too far and the just plain anger expressed by environmentalists who felt the agency wasn’t going far enough.

The rules that emerged from that tumultuous time were generally hailed by both sides as effective, practical steps toward eliminating human-caused death and injury among this most endangered of endangered species. New fishing gear to reduce entanglement would be developed, international efforts to prevent ship strikes — the leading cause of death and injury — would be strengthened. Total protection was not guaranteed, but it was moving into the realm of possibility.

Now, two new Endangered Species Act lawsuits — notices of intent to sue, actually — have yanked this issue from back from the quiet world of research, development and diplomacy to the noisier one of blame-fixing and accusation. The suit being brought by Boston whale activist Max Strahan seeks to totally shut down Maine’s fixed-gear fisheries, lobstering and gill-netting. It is virtually identical to the suit he brought against Massachusetts that ended in a split decision in 1997 — the federal judge ruled in Mr. Strahan’s favor on the case itself, but then agreed to implement a state plan he utterly opposed.

The other suit, being brought by the Conservation Law Foundation, has the potential to be more effective. CLF, which played a key role in bringing about a rational settlement in the Massachusetts case, is not seeking to kill an industry but instead wants NMFS to do more and to do it faster. And, in an example of how much things can change in a short time, CLF has as allies many of the fishermen and politicians who were most alarmed at the federal agency’s proposed rules three years ago and most relieved at the final version. Litigation may not be the best answer, they say, but something must be done to get NMFS moving.

Reasonable minds can disagree on whether NMFS has done everything exactly right, but they cannot deny that it has done a lot. NMFS’s budget for the research and development of entanglement-free gear has increased from $150,000 in 1998 to $750,000, a substantial chunk of the agency’s total Eastern Seaboard whale-protection budget of $4 million. Disentanglement teams, which include the Coast Guard, state fisheries experts and fishermen, are being trained, becoming more effective, learning a lot about what aspects of gear configurations lead to entanglement and making the accusation that NMFS improperly diverted R&D money for this purpose seem silly. Cooperation with Canadian fishermen and government agencies is improving. Knowledge about whale migration patterns is growing and tough regulations and international agreements to prevent ship strikes are being implemented.

Beyond the nuts and bolts of prevention, important research in being conducted on why the mere 300 right whales left in the northwestern Atlantic are failing to thrive, with only one birth recorded last year. Combine that with the human-caused deaths last year — one by ship strike, one by entanglement, one undetermined — and it is clear the situation is dire. Science may find that centuries of overhunting the “right” whale for commercial purposes has led to inbreeding by the few remnants and a weakened gene pool. It may find that changing climate and environmental conditions have made the ocean less hospitable. No rational assessment will find, however, that current human interactions are the cause of this population collapse.

They are an aggravating factor, though, and that is why those humans who contribute to the interactions or who seek to prevent them must do more than complain and litigate, especially now that the central issue seems to be money and how it is spent.

The fishing industry, which has the most at stake, must be more willing to help bankroll the development of the proper gear. State governments must contribute to research and development that can preserve their economies. That goes double for members of Congress, who, after all, control the nation’s checkbook. And environmental groups, while always free to litigate, also are free to use their considerable influence to raise R&D money from their contributors and to advocate for increased government spending before spending decisions are made. When those things happen, the current criticism of NMFS will seem more reasonable.