Strahan v. Linnon, Civ. A. No. 94-11128-DPW.
| Citation | 967 F.Supp. 581 |
| Decision Date | 20 May 1997 |
| Docket Number | Civ. A. No. 94-11128-DPW. |
| Parties | Richard Max STRAHAN, Plaintiff, v. Rear Admiral John L. LINNON, Commander First District, United States Coast Guard; Admiral Robert E. Kramek, Commandant, United States Coast Guard; Michael Kantor, Secretary, United States Department of Commerce; D. James Baker, Administrator, National Oceanic and Atmospheric Administration; and Roland Schmitten, Assistant Administrator, National Marine Fisheries Service, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Richard D. Belin, Wendy B. Jacobs, Jonathan M. Ettinger, Adam Kahn, Foley, Hoag & Eliot, Boston, MA, for Richard Max Strahan.
Richard Max Strahan, Boston, MA, pro se.
Elinor Colbourn, Teri R. Thomsen, U.S. Department of Justice, Environmental and Natural Resources Div., Wildlife & Marine Resources Section, Washington, DC, George B. Henderson, United States Attorney's Office, Boston, MA, John L. Marshall, U.S. Department of Justice, Wildlife & Marine Resources Section, Environmental Division, U.S. Dept. of Justice, Edward A. Boling, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for John L. and William J. Kime.
Ansel B. Chaplin, Chaplin & Milstein, Boston, MA, Anne Kenney Chaplin, Chaplin & Chaplin, Boston, MA, for Center for Coastal Studies.
Edward A. Boling, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Robert E. Kramek, Michael Kantor, D. James Baker and Roland Schmitten.
MEMORANDUM AND ORDERS
The Amended Complaint in this action contains headings for twenty-three counts variously alleging that the defendants, the United States Coast Guard and the Secretary of Commerce, have violated several federal statutes, including the Endangered Species Act, the National Environmental Policy Act, the Marine Mammal Protection Act, and the Administrative Procedure Act.1 Broadly stated, the plaintiff asserts that the defendants have addressed inadequately the impact of Coast Guard activities on various endangered marine mammals, especially the Northern Right whale. Plaintiff contends that such compliance with law as the defendants have manifested is the result only of specific mandate from this Court and that further decrees are required to secure full compliance.
The defendants now move for summary judgment on all counts arguing that they have complied with the mandates of the several statutes. The plaintiff has filed a cross motion for partial summary judgment contending the defendants' purported compliance has been inadequate and that, accordingly, the actions — and inaction — of defendants still present a threat to the endangered marine mammals.
I will grant full summary judgment to the defendants.
In June, 1994, plaintiff Max Strahan filed the original complaint in this action pro se against defendants Rear Admiral John L. Linnon and Admiral Robert E. Kramek of the United States Coast Guard. The original complaint alleged violations of four federal statutes: the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), the Marine Mammal Protection Act ("MMPA"), and the Whaling Convention Act.2 Strahan moved for a preliminary injunction and the defendants moved for summary judgment.
By a Memorandum and Order issued on May 2, 19953, Strahan v. Linnon, 967 F.Supp. 609 (D.Mass.1995), I granted summary judgment for the defendants on several of the counts in the complaint. Due to the "defendants' dilatoriness and neglect in initiating mandated procedures," however, I declined to grant summary judgment to the defendants on the counts regarding ESA consultation, conservation and permitting; MMPA permitting; and NEPA environmental assessment preparation. Memorandum and Order, at 2. I also granted, in part, Strahan's motion for a preliminary injunction, "to the extent of directing that the Coast Guard initiate and expeditiously fulfill the procedural requirements of the ESA, MMPA, and NEPA." Infra at 610.
Following that order, the Coast Guard on August 1, 1995, submitted a "Final [ESA] Biological Assessment for the U.S. Atlantic Coast" ("BA") to the National Marine Fisheries Service (NMFS) to aid consultation over its operations. Dft's Memo, at 7. Then, on September 15, 1995, NMFS issued its 1995 Biological Opinion ("BO") on U.S. Coast Guard Vessel and Aircraft Activities along the Atlantic Coast. In that Biological Opinion, NMFS concluded that long-term continuation of Coast Guard activities was not likely to jeopardize any listed species. See 1995 BO, at 39. (FEIS Vol. I, App. C.) The 1995 Biological Opinion also stated, however, that consultation must be reinitiated if an endangered whale was struck or injured by a Coast Guard vessel. Id. at 40. On September 22, 1995, the Coast Guard published an Environmental Assessment of Potential Impacts of U.S. Coast Guard Activities Along the U.S. Atlantic Coast ("EA") and a proposed Finding of No Significant Impact ("FONSI").4 (Id., App. D.) During September and October of 1995, the Coast Guard received comments on its Environmental Assessment, many of which urged the Coast Guard to reconsider its FONSI determination and issue an Environmental Impact Statement ("EIS"). See FEIS, at 2-2.
On October 9, 1995, the Coast Guard Cutter Reliance struck a Humpback whale. Id. Additionally, an increased number of Right whale mortalities was observed during the 1995-1996 Northern Right whale calving season. Id. Because of these developments, the Coast Guard reinitiated consultations with NMFS on February 22, 1996. Id. Then, on July 22, 1996, NMFS issued a second Biological Opinion on the reinitiated consultation. See FEIS, Vol. I, Exh. F. "Based primarily on the new information which indicated that the right whale population might be experiencing a decline, the 1996 Biological Opinion found that the Coast Guard activities were likely to jeopardize the continued existence of northern right whales." Id. at 24. Because of its "jeopardy" finding, NMFS proposed a Reasonable and Prudent Alternative ("RPA") which it found was likely to avoid jeopardy to the species. Id. at 26-29.
During the same time period, the Coast Guard determined that it could not reach a FONSI and that an additional environmental analysis was necessary. See FEIS, at 1-3. On April 2, 1996, therefore, the Coast Guard published a Notice of Intent to prepare a Draft Environmental Impact Statement ("DEIS") and a Scoping Notice in the Federal Register. Id. at 2-2. The DEIS was published for public review and comment on July 31, 1996. Id. at 1-3, App. Q. The DEIS promoted the Atlantic Protected Living Marine Resources ("APLMR") Initiative as the preferred alternative. After receiving and analyzing public comments, the Coast Guard published the FEIS on October 31, 1996. After a mandatory period of public review, on December 9, 1996, the Coast Guard issued its Record of Decision ("ROD") which adopted the APLMR Initiative. (Administrative Record, Vol. IV, Doc. 656.)
Meanwhile, NMFS was also engaged in other activities in order to lessen the diminishment of the Right whale population. For example, in or about August, 1996, NMFS established a Large Whale Take Reduction Team ("TRT") under the MMPA. See 61 Fed.Reg. 40819 (August 6, 1996). On January 2, 1997, NMFS issued a final rule classifying inshore and offshore lobster fisheries as Category I fisheries under the MMPA. See 62 Fed.Reg. 33. Despite the fact that the TRT did not reach consensus, it submitted a draft Take Reduction Plan ("TRP") to NMFS on February 1, 1997. On April 1, 1997, NMFS filed its proposed final TRP in the Federal Register. See Dft's Reply, Exh. C. Last, on February 13, 1997, NMFS issued an interim final rule restricting approaches within 500 yards of Right whales, whether by vessel, aircraft or other means. 62 Fed.Reg. 6729 (Feb. 13, 1997).
Unsatisfied by the defendants' consultation and conservation efforts and now represented by counsel and joined by a new co-plaintiff, Strahan moved to file an amended complaint on May 21, 1996,5 which I allowed after oral argument on June 19, 1996. A discovery and briefing schedule was established. On March 7, 1997, the defendants filed a motion for summary judgment on all counts, arguing, inter alia, that they had completed the consultation process and that their various conservation plans and environmental assessments were in place, satisfactory and would adequately protect endangered species. The plaintiff moved for partial summary judgment the same day. The plaintiff generally attacks the results of the consultation process and argues that the defendants have not adequately insured that the Northern Right whale will not continue to be jeopardized by Coast Guard and NMFS actions and inaction.
Before addressing the substantive issues in this case, I must consider several procedural arguments advanced by the defendants to deflect certain of the plaintiff's claims. First, the defendants assert that Count XII of the Amended Complaint, which alleges that NMFS violated Section 7 of the ESA because the 1995 Biological Opinion ("BO") "fails to meet the requirements of the ESA," is moot because the 1995 Biological Opinion has been superseded by the 1996 Biological Opinion. I agree with the defendants that the claim against the 1995 Biological Opinion is now moot because the 1995 Biological Opinion is no longer in effect and "the challenged actions are now water over the spillway, as it were." Idaho Dep't of Fish & Game v. NMFS, 56 F.3d 1071, 1074 (9th Cir.1995).6 The plaintiff has had ample time to move to amend his complaint and has failed to do so in accordance with Fed. R.Civ.P. 15 in order to restate his claims formally as to the 1996 Biological Opinion. Nevertheless, despite the lack...
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