Right, humpback, and fin whales were hunted by commercial whalers. The right whale, in particular, was targeted by whalers because it is a slow- moving animal that floats when it is killed, due to its high blubber content. Accordingly, whalers gave the right whale its name because it was the “right” whale to hunt. In 1949, the International Convention for the Regulation of Whaling protected right whales from commercial whaling. In 1970, the species was listed as endangered under the Endangered Species Conservation Act, the precursor to the ESA. Right whales were subsequently listed as endangered under the ESA in 1973. Despite several decades of conservation efforts, the right whale has struggled to recover due to low reproductive rates and accidental human-caused mortality. The North Atlantic right whale is among the most endangered large whale species in the world. A 1999 study estimated that the species will be extinct within 200 years if mortality rates continue. Humpback and fin whales were hunted for oil, meat, and materials for utilitarian products (e.g., corset stays, umbrella ribs, buggy whips, etc.) until the 20th century. The International Whaling Commission banned commercial whaling of North Atlantic humpback whales in 1955. Commercial whaling of the fin whale was banned in the North Atlantic in 1987. Both humpback and fin whales have been listed as endangered under the ESA since its passage in 1973. Atlantic large whales are at risk for entanglement in commercial fishing gear when they are traveling, feeding, and breeding. For example, right whales feed with their mouths open for extended periods of time using their baleen—a substance that grows in comb-like rows from the upper jaws of toothless whales—to filter plankton from seawater. Much about the movements and habitats of right whales remains unknown. However, it is generally thought that some right whales winter in the lower latitudes— off the southeast U.S. Atlantic coast, where calving takes place—then migrate to higher latitudes, near Massachusetts and Maine for the summer, following concentrations of copepods, their principal food source. Right whales primarily use the mid-Atlantic region to migrate to and from the calving grounds in the south. Like right whales, humpback whales also feed off the coasts of Massachusetts and Maine, however, they winter farther south. Humpback whales employ a variety of feeding techniques that differ from right whale feeding techniques. For example, one way that humpback whales feed is by lunging into a patch of small fish with their mouth wide-open for a short period of time. Like right and humpback whales, scientists believe that fin whales use northern waters primarily for feeding and southern waters primarily for calving. Fin whales also engage in lunge feeding. Under the MMPA, NMFS must develop a plan to protect Atlantic large whales from entanglements that cause serious injury or mortality. The MMPA was enacted in 1972 to provide protection for all marine mammals. Section 118, enacted in the 1994 amendments to the MMPA, specifically outlines a process for reducing serious injury and mortality incidental to commercial fishing operations. Under that process, if NMFS determines that a species’ ability to recover has become diminished by commercial fishing activities, the agency must develop and implement a plan—known as a take reduction plan—to reduce serious injury and mortality to the species. The MMPA requires a take reduction team to be involved in developing a take reduction plan. Members of the team are required to have either biological/conservation expertise relevant to the marine mammal species addressed in the take reduction plan or the fishing practices that result in the incidental mortality and serious injury of the species. Team members must include representatives of federal agencies, state agencies, Regional Fishery Management Councils, interstate fishery commissions, academic and scientific organizations, environmental groups, and fishery groups that use gear that could harm the species. The immediate goal of a take reduction plan is to reduce, within 6 months, mortality and serious injury below the potential biological removal level— meaning the maximum number of human-related mortalities that can occur annually without limiting the species’ ability to recover. The long- term goal of a take reduction plan is to, within 5 years, reduce fishery- related mortality and serious injury to insignificant levels approaching zero. The take reduction plan must include recommended regulatory and voluntary measures aimed at reducing mortality and serious injury, such as requiring the use of alternative commercial fishing gear or techniques. The current ALWTR plan, originally developed in 1997, includes both universal gear modifications that apply to all lobster traps and anchored gillnets as well as area- and season-specific requirements. The universal requirements prohibit floating vertical line at the surface, require gear to be hauled out of the water at least once every 30 days, and encourage fishermen to maintain knot-free vertical lines. In particular areas, such as Cape Cod Bay, fishermen are required to use sinking groundline, which poses less of an entanglement risk because it sinks to the ocean floor rather than creating loops in the water. Fishermen in certain areas are also required to attach weak links—devices that are designed to break if a particular amount of pressure is applied—to their vertical lines or gillnet panels and place marks on their gear so researchers may be able to identify the fishery involved and the location where the gear was set if it is later recovered from an entangled whale. In addition, certain restricted areas are closed to lobster trap fishing or anchored gillnetting during particular seasons when whales are likely to be in the area. When these areas are open, fishermen are limited to using gear that meets particular requirements, such as weak links. While NMFS has developed the ALWTR plan pursuant to its responsibilities under the MMPA, NMFS also has responsibilities under the ESA. The ESA directs all federal agencies to utilize their authorities to conserve threatened and endangered species. In addition, such species and their habitats must be protected against adverse effects of federal activities such as operating hydroelectric dams, thinning vegetation to prevent wildfires, and—as in this case—permitting fishing, so that the continued existence of protected species is not jeopardized. The right, humpback, and fin whale species are all listed as endangered under the ESA. Section 7 of the ESA directs federal agencies that are taking actions that may affect protected species—referred to as action agencies—to initiate a “consultation” to assess the impacts of their actions on threatened and endangered species. Federal action agencies consult with either NMFS or the U.S. Fish and Wildlife Service within the Department of the Interior, depending on which species their actions may affect. These agencies are referred to as the consulting agencies. For example, because NMFS regulates commercial fishing and the activities of the fishing industry have seriously injured or killed endangered whales, NMFS must consult on its proposed fishery regulation that may affect endangered whales. Consequently, in this case, NMFS acts as both the action agency and the consulting agency. Action agencies submit biological assessments to the consulting agencies that discuss their proposed activities and their likely effects on protected species and their habitat. The consulting agency completes the formal consultation process by issuing a biological opinion. If the consulting agency concludes that the proposed activities are likely to jeopardize the species’ continued existence or adversely modify its habitat, the biological opinion will include reasonable and prudent alternatives that are necessary or appropriate to minimize impacts to protected species. If any “take” of a species is expected to occur, the biological opinion also must contain terms and conditions designed to reduce take and address adverse modification of designated critical habitat. For example, NMFS has prepared biological opinions to assess the impact of continuing to permit the multispecies, spiny dogfish, monkfish, and lobster fisheries on protected marine species. In the most recent opinion, NMFS identified the fishing gear modifications contained in the ALWTR plan as a reasonable and prudent alternative to protect right whales from fishing gear entanglements. In 2000, after new whale entanglements caused serious injuries to right whales, as well as at least one right whale fatality in gillnet gear, NMFS reinitiated a section 7 consultation for the multispecies, spiny dogfish, monkfish, and lobster fisheries. NMFS’s biological opinion found that its administration of these fisheries was likely to jeopardize the continued existence of the right whale. Consequently, NMFS developed the Seasonal Area Management (SAM) and Dynamic Area Management (DAM) programs as reasonable and prudent alternatives to avoid further jeopardizing the existence of the right whale. The SAM program imposes seasonal restrictions on lobster and gillnet fishermen to protect predictable aggregations of right whales that annually feed in waters north and east of Cape Cod. Gear set in the SAM zone during designated times must be low-risk gear, which is defined as gear that is highly unlikely to cause death or serious injury to large whales. For example, lobster and gillnet fishermen are prohibited from using floating groundline in the western part of the SAM area from March 1 to April 30 and in the eastern part of the SAM area from May 1 to July 31, when whales are expected to be in the area. The DAM program, on the other hand, requires temporary gear restrictions in areas that experience an unexpected aggregation of right whales. If three or more right whales are spotted within 75 square nautical miles, NMFS can restrict fishing by taking one or all of the following actions: (1) requiring lobster and gillnet fishermen to remove their gear and prohibiting them from setting additional gear within the area, (2) limiting the type of gear that can be used in the area, or (3) encouraging fishermen to voluntarily stop fishing and remove their gear from the area.