939 F.Supp. 963 (D.Mass. 1996), C. A. 95-10927, Strahan v. Coxe

Docket Nº:C. A. 95-10927
Citation:939 F.Supp. 963
Party Name:Strahan v. Coxe
Case Date:September 24, 1996
Court:United States District Courts, 1st Circuit, District of Massachusetts
 
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939 F.Supp. 963 (D.Mass. 1996)

Richard Max STRAHAN, Plaintiff,

v.

Trudy COXE, Secretary, Massachusetts Executive Office of Environmental Affairs, John Phillips, Commissioner, Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement, Philip Coates, Director, Massachusetts Division of Marine Fisheries, Defendants.

Conservation Law Foundation, Inc., Amicus Curiae.

Civil Action No. 95-10927-DPW.

United States District Court, D. Massachusetts.

Sept. 24, 1996

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[Copyrighted Material Omitted]

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Richard Max Strahan, Boston, MA, pro se.

Salvatore Giorlandino, Attorney General's Office, Trial Division, Boston, MA, for Trudy Coxe, John Phillips, Philip Coates.

Douglas Foy, Alan Wilson, Conservation Law Foundation, Inc., Boston, MA, for Conservation Law Foundation, Inc.

MEMORANDUM

WOODLOCK, District Judge.

I.

A conservationist contends that several officials of the Commonwealth of Massachusetts have violated the Endangered Species Act ("ESA") and the Marine Mammal Protection Act ("MMPA") by authorizing the use of "gillnets" 1 and "lobster gear" 2 by commercial fishing boats in Massachusetts waters, including areas designated as a "critical habitat" for the endangered Northern Right whale, and by allowing whale-watching ships to approach whales closely. Defendants move to dismiss and/or for summary judgment. Plaintiff seeks a preliminary injunction and a temporary restraining order.

Plaintiff has shown a sufficient likelihood that endangered whales are periodically "taken" through entanglements with gillnets and lobster gear in waters regulated by the Defendants, who have not obtained an ESA or MMPA incidental take permit from the National Marine Fisheries Service ("NMFS"). 3 Because this showing is sufficient, I have denied the Defendants' motion for summary judgment on Count 4 I, which alleges a violation of Section 9 of the ESA through entanglements in gillnets and lobster gear. In addition, I have denied the Defendants' motion for summary judgment on Count II, which alleges a "taking" through habitat modification. But because Plaintiff has no cause of action under the MMPA, I have granted the motion to dismiss Count III. Finally, I have granted the Defendants' motion for summary judgment on Count IV, which alleges a violation of Section 9 through pursuit and harassment by whale-watch vessels, because there is no indication that Defendants will repeat their conduct of 1989, when they allowed approaches closer than 500 yards 5 and because the Plaintiff has not established that whales are harmed by approaches at 500 yards or more.

Having found a likelihood of success by Plaintiff on Counts I and II and an adequate showing of harm for purposes of the ESA, I will also fashion interlocutory injunctive relief although as detailed infra, the relief differs from that sought by the Plaintiff.

II. Procedural History

The Plaintiff, Richard Max Strahan, the national campaign director of GreenWorld, 6

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filed this complaint on April 21, 1995 alleging four counts 7 of violations of the ESA and the MMPA. Three defendants are named in the complaint: Trudy Coxe, Secretary of the Massachusetts Executive Office of Environmental Affairs (EOEA); John Phillips, Commissioner of the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement (DFW); and Philip Coates, Director of the Massachusetts Division of Marine Fisheries (DMF).

On May 9, 1995, Strahan filed an Application for a Temporary Restraining Order (TRO) and Motion for a Preliminary Injunction. The defendants moved to dismiss or in the alternative for summary judgment.

On June 15, 1995, I held a hearing on the application. At this hearing, I addressed a number of issues. First, concerning jurisdiction, Strahan asserted that he had provided the requisite notice to the Secretary of Commerce approximately two years before filing this suit of his intent to sue. I instructed Strahan to file an affidavit that he had, in fact, provided such notice. 8 Second, regarding Strahan's standing to bring suit, I held that I would take judicial notice of Strahan's statements during his deposition in another case involving the Northern Right whale, Strahan v. Linnon, slip op., No. 94-11128-DPW (as corrected May 19, 1995), unless the Defendants filed an objection by June 21, 1995. 9 Third, I also directed Strahan to file affidavits and other supporting documents regarding his allegations of Northern Right whale entanglement in fixed fishing gear. 10

I subsequently allowed a motion of the Conservation Law Foundation, Inc. (CLF) for leave to file an amicus curiae brief in this case. In its amicus curiae brief, CLF attached affidavits from Charles Mayo, 11 David

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Mattila, 12 and Eleanor Dorsey 13 regarding the impact of fixed fishing gear on Northern Right whales and recommendations to reduce this impact. 14 Strahan thereafter moved for these amicus curiae affidavits to be re-entered into the record on his behalf. I allowed that motion.

At a status conference held on March 13, 1996, Strahan submitted a second application for a TRO and moved for an emergency preliminary injunction enjoining the defendants from issuing any new permits in Cape Cod Bay until June 1, 1996, and from revoking any existing permits. At this conference, I also directed the Defendants to submit affidavits detailing any efforts that they have undertaken regarding the Northern Right whale. 15 By endorsements on March 29, 1996, I granted in part and denied in part the Defendants' motions to dismiss and for summary judgment and noted that I could not grant a preliminary injunction in the form sought by Plaintiff. I indicated that a memorandum of decision would follow. This is that Memorandum.

At a status conference on April 12, 1996, I solicited statements from the Defendants regarding interim measures which could be taken to provide further protections to the whale populations and established a briefing schedule for additional submissions, in light of Supreme Court developments regarding the Eleventh Amendment. I heard argument principally on the Eleventh Amendment issue on May 21, 1996, and received a number of submissions thereafter.

The development of this case has been extremely difficult in large part because of Plaintiff's pro se status. Unlike the companion Linnon litigation, see note 16 infra, where Plaintiff is now assisted by very competent counsel and orderly case management has been possible, here the Plaintiff's solo involvement has complicated matters considerably. The Plaintiff, while pressing a case which I find to have significant merit, is a highly aggressive and abrasive individual whose conduct has generated a number of complaints and requests by Defendants for sanctions against him. I have sought to avoid being distracted by such ancillary matters in order to address the merits of the case. Nevertheless, I am sorely aware that the Plaintiff's claims raise the prospect of substantial disruption to the fishing industry in Massachusetts and that Plaintiff is not by training or disposition capable of accommodating competing views. Consequently, I have moved diffidently in attempting to shape a means for framing and resolving this matter. The interlocutory injunctive relief detailed herein is designed to formalize and advance the necessary conversations which must take place to resolve the claims presented here.

III. Factual and Regulatory Background

Strahan, an officer of GreenWorld, Inc., brings suit "on behalf of" the Northern Right whale (Eubalaena glacialis); the Humpback whale (Megaptera novaeangliae); the Fin or Finback whale (Balaenoptera physalus); the Blue whale (Balaenoptera musculus); the Sei whale (Balaenoptera borealis); the Minke whale (Balaenoptera acutorostrata); and the Harbor porpoise (Phocoena phocoena). 16 With the exception of the Minke whale, all of the whales on this list have been listed as endangered species by the federal government. See 50 C.F.R. § 222.23(a). In 1993, NMFS proposed to list the Gulf of Maine population of the Harbor porpoise as

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"threatened." 58 Fed.Reg. 3,108 (Jan. 7, 1993). The Complaint and other submissions focus on the Right whale, and briefly describe injuries to Humpback, Fin and Blue whales.

A. Whales in Massachusetts Waters: Population and Behavioral Patterns

1. Right Whales

Right whales are the most endangered of the large whales, despite the fact that they have been protected from commercial whaling since 1935. See Final Rule: Designated Critical Habitat; Northern Right Whale, 59 Fed.Reg. 28,793 (1994) (NMFS); cf. Proposed Rule: Designated Critical Habitat; Northern Right Whale, 58 Fed.Reg. 29,186 (1993). 17 There are only approximately 300 to 350 individual Right whales in the western North Atlantic, and the eastern North Atlantic population may be nearly extinct. 59 Fed.Reg. 28,793. Many human activities can disrupt the Right whale, including vessel activities, commercial fishing, and pollution. 59 Fed.Reg. 28,796-97.

The vast majority of Northern Right whales are present in Massachusetts waters only during spring feeding. The whales "spend the spring and early summer off the coast of New England, then in the latter part of the summer and fall, move to the waters off southern Canada." (NMFS, Right Whale Recovery Plan, TRO Ex. 1 at 5.)

[During] March to May most sightings are in the Cape Cod-Massachusetts Bay area and the [Great] South Channel on the western edge of the Georges Bank. Feeding activity is the most [frequently] seen behavior at this time. Differences in distribution observed each year are ... due to prey abundance. It has been suggested that most of the northern right whale population moves through this area en...

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