How Did Gulf of Maine Lobster Get Canceled?

And does it matter? A look at the red-listing of Maine’s iconic export — and the fallout.

How Did Gulf of Maine Lobster Get Canceled?
By Kathryn Miles
From our December 2022 issue

The line at Red’s Eats, in Wiscasset, snaked around the corner on a warm Saturday afternoon this fall. Many of the customers had queued up even before the iconic stand had opened, and all were eager enough for one of its famous lobster rolls that they were prepared to wait an hour or more. No one confessed to knowing that, just a few weeks before, the Monterey Bay Aquarium’s Seafood Watch, an agenda-setting program for sustainability-minded seafood buyers and chefs, had shocked the industry by placing Gulf of Maine lobster on its “red list” of species to avoid.

Not Dodie Neo, an Ohioan retiree who’d been in line for 45 minutes when I approached her. Knowing about the red-listing, however, wouldn’t have stopped her from ordering. “The aquarium has a right to put lobster on whatever list it wants,” she told me. “And I have a right to eat it.”

Way down the road, at Highroller Lobster Co., in Portland’s Old Port, the crowd skewed younger and hipper, but wait times were just as long and customers just as surprised to hear about lobster getting canceled. After some discussion, most in line seemed to agree with Rick Conlin, visiting from western Massachusetts, that it didn’t much matter. “I vote for the lobstermen,” he said.

If you follow the news of New England, ignorance of the Seafood Watch censure might seem surprising. When the Monterey Bay Aquarium announced in September that it was red-listing American lobster because of the fishery’s impact on critically endangered North Atlantic right whales, national media outlets jumped on the story. In Maine, the red-listing was covered breathlessly, not least because lobstering seemed to be an issue politicians from every party could rally around during a heated midterm election, with opposing candidates standing shoulder-to-shoulder at rallies in defense of lobstermen and Maine’s whole congressional delegation cosponsoring the “Red Listing Monterey Bay Aquarium Act,” to block federal funding for the aquarium. (The aquarium itself receives little taxpayer support; the bill and the delegation’s press materials allude to millions in federal research grants received annually by its sister organization, the Monterey Bay Aquarium Research Institute.)

So how did a California aquarium come to cause such hue and cry in Vacationland?

Monterey Bay founded its Seafood Watch program in 1999, at a time when the then–15-year-old tourist attraction was increasingly branching out into advocacy and conservation policy. What began as a pocket guide to take along to the fish market is today an extensive set of buyers’ guides that rate fisheries and farms using a color-coded system: Green signals a “best choice,” while blue indicates certification for sustainability from a trusted third party. Yellow suggests “okay, but some concerns,” and red means “avoid.”

An entangled North Atlantic right whale that researchers have nicknamed Snow Cone, with her calf.
An entangled North Atlantic right whale that researchers have nicknamed Snow Cone, with her calf, sighted some 12 nautical miles off Fernandina Beach, Florida, in January. Last sighted in September, south of Nantucket, Snow Cone was dragging new fishing gear and in poor health. The calf has not been sighted since April. Photo courtesy of the Florida Fish and Wildlife Conservation Commission, taken under NOAA permit 20556.

Jennifer Dianto Kemmerly, Monterey Bay’s vice president of global conservation, says that, since its inception, Seafood Watch has based its rating system on international best practices, including those established by the United Nations’ Food and Agriculture Organization, which began establishing sustainability frameworks and its Code of Conduct for Responsible Fisheries back in 1995. Using those metrics, she says, Seafood Watch formulates its ratings, assessing both the health of the harvested species as well as that fishery’s impact on other species.

“We first need to answer questions like, is overfishing occurring?” Kemmerly says. “The other criterion we look at is what other species are being caught by accident and whether those species are being harmed. Finally — and this is a really important one — we look at what government officials are doing to mitigate these impacts.”

The assessments, Kemmerly says, are updated every five years by a team of aquarium scientists and external peer reviewers, but an assessment review can also be triggered, either by emerging research and the publication of significant scholarly articles or by a new report issued by federal or state management organizations. When Seafood Watch was first created, American lobster was red-listed because of overfishing concerns. When, not long after, new data alleviated these, lobster’s status was elevated to yellow — although scientists noted concerns even then about the fishery’s impact on right whales.

Two events triggered the recent reassessment, Kemmerly says. First, in 2017, was the recorded deaths of 17 North Atlantic right whales, which the fisheries service of the National Oceanic and Atmospheric Administration declared an “unusual mortality event.” Then, in 2020, a federal judge ruled in a 2018 suit brought by a coalition of environmental groups that NOAA Fisheries was violating the Endangered Species and Marine Mammal Protection acts by doing too little to prevent whale entanglements in lobstering gear.

“We were doing a lot of updating, watching, and incorporating new data for two years before we began circulating our draft assessment for peer review and public comment,” Kemmerly says. “By the spring of last year, it had become clear that we had a dire situation and enough information that this fishery is out of compliance with [federal law]. We felt like the public really did need to know that.”

Marine scientists agree categorically that entanglements in so-called fixed gear — such as lobster traps and their attached ropes and buoys — are responsible for mortalities in certain marine species, including sea turtles and several species of large whales, such as humpbacks, minkes, and right whales. NOAA Fisheries designates lobstering a Category I fishery under the Marine Mammal Protection Act, meaning it is frequently responsible for death or serious injuries to other species. With right whales approaching extinction — there are estimated to be fewer than 350 of them — the prospect of entanglement is particularly dangerous.

Entanglement can kill whales by drowning them in heavy gear, creating lacerations that become infected, or starving them when lines entangled around the mouth keep them from filtering food through their baleen. Today, entanglement is the leading cause of death and injury to right whales, far eclipsing the number two cause, ship strikes. (No right whale in more than a decade has been known to die of natural causes.) More than 80 percent of all living right whales show scarring and other evidence of at least one entanglement; some have been entangled as many as seven times. In recent years, at least 78 of these entanglement events have resulted in life-threatening injuries, and scientists say that number is probably higher, since most carcasses of dead whales are never observed — instead, a whale is presumed dead if it isn’t spotted for five years in a row. Even the stress from a minor or temporary entanglement, studies show, can diminish a whale’s life expectancy and leave females less likely to calve.

“It’s a chronic problem out there,” says Amy Knowlton, a senior scientist for the New England Aquarium’s Kraus Marine Mammal Conservation Program.

Most North American right whales migrate each year from Florida to Canada’s Gulf of St. Lawrence and back, and historically, they’ve spent summers and breeding seasons in and around the Gulf of Maine. Given this range, it is rarely clear which regional fishery’s gear is responsible for mortality events. Researchers have documented more than 1,700 instances of right whale entanglement between 1980 and 2019 (pdf). Of these, they can trace fewer than 20 to a specific fishery — Nova Scotia crab, say, or Maine lobster. One reason why is that a whale’s injuries can last long after it sheds entangled gear — many instances of entanglement are documented only by visible scars, and it’s not uncommon for a whale to die of infection or starvation even after becoming disentangled. Another reason is that, until recently, most rope wasn’t marked to indicate its origin. Not until 2015 did U.S. federal officials start requiring some fisheries to color-code their lines. Maine lobstermen lobbied for an exemption from this requirement in state waters until 2020 (today, three-foot purple bands mark inshore gear, while purple and green mark offshore lines).

Researchers from the New England Aquarium’s Atlantic Right Whale Research Program collect data at sea.
Researchers from the New England Aquarium’s Atlantic Right Whale Research Program collect data at sea. Photo courtesy New England Aquarium.

The years since, researchers say, haven’t been enough time to gather sufficient data on the impacts of specific fisheries on whale mortality. However, since 2020, five whales of other species (four minkes and one humpback) have been found entangled in Maine gear. NOAA risk-reduction plans assume U.S. fisheries are responsible for roughly half of right whale entanglements. The agency reports six right whale entanglements traced to Maine lobstering gear between 1997 and 2004; in the years since, at least three others were traced to lobstering gear from somewhere in the northeastern U.S., with the specific state waters unknown. The numbers sound small, until you consider how few entanglements can be traced to any fishery. Given that Maine’s roughly 3 million traps comprise about 90 percent of the U.S. lobster fishery, and that the state rivals all of Canada for both the number of traps and for landings, it’s not unlikely that other entanglements have occurred as a result of Maine gear.

Motivated by these factors — and the ruling in the environmental groups’ 2018 lawsuit — NOAA Fisheries has placed new requirements on lobstermen, mandating, among other things, more traps per trawl line, the use of “weak-link rope” that whales can more easily break free from, and seasonal closures of some offshore fishing grounds. Maine lobstermen have complied, often at great expense, with these and past requirements, says Curt Brown, a multi-generational Maine lobsterman and marine biologist for Portland’s Ready Seafood, which supplies lobster to local restaurants like Highroller and national chains like Red Lobster.

“I’d argue that Maine lobstermen have done more to protect right whales than any other group,” he says. “This isn’t a story about right whales vs lobstermen — one thing everyone can agree on is that it’s important to protect right whales.”

However, the Maine Lobstermen’s Association is challenging in federal court the NOAA Fisheries assessment behind the newest regulations, contending that federal scientists overstate the dangers Maine lobstering poses to right whales. Maine lobstermen are quick to argue that no right whale deaths have ever been attributed to Maine lobstering gear, that the last entanglement attributed to Maine gear dates to 2004, and that there’s reason to believe right whales’ feeding and migration patterns are shifting away from the warming Gulf of Maine.

Meanwhile, the environmental groups’ 2018 suit is ongoing, amended to argue that the newest NOAA regulations still don’t go far enough to comply with the Endangered Species Act and Marine Mammal Protection Act. A federal court agreed in July, but the Maine Lobstermen’s Association, the Maine Lobstering Union, and the state of Maine — all interveners in the suit — have appealed. In October, Governor Janet Mills committed $100,000 from her contingency fund to the Maine Lobstermen’s Association legal fund.

That the latter suit prompted Seafood Watch to reconsider the fishery’s status rankles Brown.

“We’re always going to be guilty until proven innocent,” he says. If Maine lobstermen continue doing all that’s legally asked of them, he wants to know, then who is the Monterey Bay Aquarium to judge whether what they’re doing is sufficient?

A few weeks after Seafood Watch red-listed American lobster, Sara Jenkins put a poached-lobster special on the menu at her Rockport restaurant, Nina June. A chef known for her Mediterranean fare, Jenkins doesn’t often cook with lobster, but it was Maine Lobster Week, and she wanted both to support local lobstermen and please summer tourists who come expecting the state’s totemic crustacean.

Jenkins is a member of the Seafood Watch’s Blue Ribbon Task Force, a group of about 50 chefs and culinary professionals who’ve completed the aquarium’s sustainability training and made a commitment to sustainable seafood — “exemplary leaders in the culinary field” is how Seafood Watch describes them. Down East contacted 18 restaurants run by Blue Ribbon chefs — from NYC to DC to Houston to Denver — whose online menus indicated they serve or have recently served lobster. Six weeks after the Seafood Watch listing, all but two said they are continuing to do so.

For her part, Jenkins says she took note of the red-listing, but it didn’t ultimately impact her decision-making. “Monterey Bay Aquarium is a powerful institution that’s worked really hard on sustainability for years,” she acknowledges. “That said, it does seem like they are doubling down on punishing lobstermen.”

Jenkins says she sees the Seafood Watch red list as a signal that she should think before purchasing and serving a particular fish — but not necessarily as a prohibition. Both Atlantic mackerel and halibut have been red-listed, she points out, but she continues to serve them at Nina June.

Photo by Mark Fleming.

“I definitely don’t think we should be eating anything into extinction,” she says. “Maybe we should all be really rigid and abide by what the aquarium says, but you have to choose the hills you’re going to die on. As a Maine chef committed to local food, I only have so many choices as it is.”

Ultimately, she says, she’s more persuaded by what local lobstermen are telling her and by the integrity of her suppliers, who follow sustainability guidelines published by other organizations, such as the Gulf of Maine Research Institute.

Highroller Lobster Co. co-owner Baxter Key echoed the sentiment. “Obviously, we care about sustainability and the survival of the right whale, but we also know that the Maine lobster industry has been working to comply to keep the ocean safe for other species,” he says. His company relies on its supplier, Ready Seafood, to provide assessments of the sustainability of the lobster fishery. “We’ve always felt confident that they are providing seafood that is sustainably harvested. Knowing they are our provider allows us to feel comfortable serving lobster rolls.”

The degree to which other buyers are influenced by Seafood Watch is mixed. Immediately after lobster was red-listed, it was widely misreported that the national meal-kit service Blue Apron had discontinued lobster in response to the designation; however, a Blue Apron spokesperson says lobster was only used once, in a special 2021 holiday box, and was never a regular ingredient. The similar HelloFresh kit service, however, announced it would abide by Seafood Watch’s recommendation. As of mid-October, the Portland location of Whole Foods, a collaborating partner with Seafood Watch, was still selling a variety of lobster products. The chain’s press team didn’t respond to inquiries, but the website explains that Seafood Watch is just one among several sources of information for the company’s purchasing decisions.

So just how influential is Seafood Watch? The program has its roots in the global concern that arose in the late 1980s over the collapse of key fish stocks, including Atlantic cod and Bering Sea pollock. In response, the United Nations Food and Agriculture Organization issued guidelines aimed at making fisheries more sustainable. Around the same time, consumer trepidation about farm-raised seafood was spurring new guidelines for safe aquaculture practices. By the mid-1990s, organizations specializing in sustainable-seafood assessments began to proliferate. They included groups like the Marine Stewardship Council and the Global Aquaculture Alliance, both of which offer particular fisheries a sustainability certification using third-party auditors.

The Monterey Bay Aquarium took a different tack: instead of responding to a fishery’s request for certification, Seafood Watch designated which species it would evaluate, then went directly to the consumer with purchasing recommendations. Other organizations, including Audubon and Greenpeace, soon followed suit, offering their own rating systems, and by 2012, consumers had access to some 200 different sustainable-seafood guides.

The information presented by such lists was at best confusing and sometimes contradictory. A 2012 Maine Sea Grant study found major discrepancies in how different guides rated seafood. Take sea scallops, which the study found were designated green, or “environmentally friendly,” by one list, yellow by three others and red, or “don’t eat,” by yet another. Swordfish also garnered green, yellow, and red ratings from various leading indices. While the study found that most of these lists rated lobster as sustainable, many did note concerns about the industry’s impact on endangered North Atlantic right whales.

In the last decade, many food-industry insiders have come to place more stock in voluntary third-party certification programs than in omnibus consumer guides. Accordingly, many organizations have retired their rating systems, including Greenpeace and the New England Aquarium. Spokespeople for both say their organizations decided that money and resources were better spent on conservation efforts. “The criteria used by a lot of these guides was murky at best,” says Brian Perkins, CEO of the Global Seafood Alliance, an international NGO dedicated to advancing responsibly sourced seafood. “They weren’t necessarily based on scientifically established criteria or independent audits.”

Today, certification programs include international actors like the Marine Stewardship Council and regional efforts like the Gulf of Maine Research Institute’s Responsibly Harvested label, which uses criteria derived from the UN and other globally recognized standards that assess both management plans and a fishery’s impact on the environment. Wal-Mart, one of the largest grocery-chain purchasers of seafood, requires all its sources be certified as sustainable by organizations like the MSC. Hannaford, meanwhile, uses a combination of benchmark standards from the Netherlands-based Global Sustainable Seafood Initiative and from GMRI.

Kyle Foley is GMRI’s seafood program manager. As far as the group’s Responsibly Harvested certification program is concerned, she says, lobster remains a sustainable seafood. “The industry has implemented and followed the rules put in place to address entanglements,” Foley says. “They are now facing the prospect of additional, potentially devastating rules being put in place to reduce the risk of entanglement to essentially zero.”

In an email in October, Celine Rouzaud, spokesperson for the MSC, emphasized that that the organization doesn’t assess whether a fishery meets sustainable standards; that work is done by independent auditors. Those auditors, she said, had not determined that lobstering’s threat to right whales is sufficient enough to revoke the industry’s MSC certification. However, she also added that the court rulings against NOAA Fisheries had triggered an expedited audit of lobstering, then underway, which could potentially result in the decertification of lobster. “Any harmful interaction with North Atlantic right whales will be reviewed immediately and could result in the suspension of a fishery’s MSC certificate,” Rouzaud wrote.

On November 16, shortly after this story went live, MSC announced it would be suspending its certification of the Gulf of Maine lobster fishery. As of December 15, Gulf of Maine lobster can no longer be sold as “MSC certified sustainable” — a decision likely to impact the industry more dramatically than Seafood Watch’s red-listing.

In September, just days after Seafood Watch publicized the red-listing, NOAA Fisheries announced it would begin analyzing potential amendments to its regulations affecting fisheries and right whales. Monterey Bay Aquarium’s Jennifer Dianto Kemmerly says she’s hopeful that additional efforts by the agency and Maine lobstermen to protect the whales will result in a new assessment that removes lobster from the red list.

“It’s time to really highlight the work that needs to be done to save a critically endangered species and bring the lobster fishery back in compliance with federal law,” she says. “We believe that saving a species and preserving livelihoods can coexist.”

What’s a sustainability-minded consumer to do in the meantime? “Find a merchant you trust,” Brian Perkins says, “and make sure they’re doing their homework.”

Back at Highroller, in Portland, the wait time showed no signs of abating, even after the lunch rush, leaving hungry patrons with plenty of time to contemplate the implications of lobster’s red-listing. Rick Conlin decided to read up on it on his smartphone. After a bit of surfing, he decided he was still circumspect about Seafood Watch’s rating.

“I want to see their data — I want to know if they’re allowing for geographical distinctions and which locations are really problems,” he concluded. “If they can convince me their assessments are sound, that would have an impact on me. In the meantime, I’m going to trust the people here.”

This story was updated on November 16 to reflect the Marine Stewardship Council’s suspension of its certification. The story was updated again on November 18 to reflect that the Monterey Bay Aquarium and Monterey Bay Aquarium Research Institute are distinct sister organizations.