Strahan v. Roughead

• Decision Date: 26 December 2012
• Docket Number: C.A. No. 08–10919–MLW.
• Citation: 910 F.Supp.2d 358
• Parties: Richard Max STRAHAN, Plaintiff, v. Adm. Gary ROUGHEAD, Defendants.
• Court: U.S. District Court — District of Massachusetts

910 F.Supp.2d 358

Richard Max STRAHAN, Plaintiff,

v.Adm. Gary ROUGHEAD, Defendants.

C.A. No. 08–10919–MLW.

United States District Court, D. Massachusetts.

Dec. 26, 2012.

Richard Max Strahan, Cambridge, MA, pro se.

Adam J. Kessel, Lawrence K. Kolodney, Frank L. Gerratana, Fish & Richardson, P.C., Boston, MA, for Plaintiff.

Anton P. Giedt, United States Attorney's Office, Boston, MA, Bradley H. Oliphant, United States Department of Justice, Denver, CO, Lawson E. Fite, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. INTRODUCTION

This case involves the United States Navy's obligations to protect four whale species (the “Federally Protected Whales”) under the Endangered Species Act (the “ESA”), 16 U.S.C. § 1531 et seq. Plaintiff Richard Max Strahan, proceeding pro se, seeks declaratory and injunctive relief against the defendants, Admiral Gary Roughead and Secretary Raymond E. Mabus of the United States Navy, and Leon Panetta, the Secretary of the United States Department of Defense (collectively the “Navy”).¹ In essence, plaintiff contends that the Navy is violating provisions of the ESA by: (1) operating its vessels and conducting training operations in United States Atlantic coastal waters in a manner that kills and injures the Federally Protected Whales and adversely alters federally designated critical habitat; and (2) failing to consult with the National Marine Fisheries Service (the “NMFS”) regarding the impact of its operations. The Federally Protected Whales are the blue whale ( Balaenoptera musculus ), the fin whale ( Balaenoptera physalus ), the humpback whale ( Megaptera novaeangliae ), and the North Atlantic right whale ( Eubalaena glacialis ) (the “right whale”).²See Compl. ¶ 2; see also50 C.F.R. §§ 17.11(h) & 224.101(b) (listing protected species).

In their renewed their motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (the “Renewed Motion to Dismiss”), defendants essentially contend that plaintiff's claims are moot because the Navy has engaged in the consultation required under the ESA, and has obtained permission from the NMFS to incidentally “take” Federally Protected Whales while conducting its activities. See Defendants' Supp. Mem. of Points and Authorities in Supp. of Mot. to Dismiss (Docket No. 71); Defendants' Mot. to Dismiss For Lack of Subject Matter Jurisdiction (Docket No. 25).³

At a hearing on March 16, 2012, the court denied plaintiff's oral motions to file a supplemental memorandum in opposition to the Renewed Motion to Dismiss and to file an amended complaint. In a companion Memorandum and Order issued today, the court is denying Plaintiff's Notice of Withdrawal, in which plaintiff seeks to withdraw his Opposition Memorandum and submit a new one. Defendants' Renewed Motion to Dismiss is being decided on the parties' current submissions.

For the reasons described below, defendants' Renewed Motion to Dismiss is being denied because there remain in the present record material disputed facts concerning whether the plaintiff's claims are moot. Therefore, the parties are being ordered to confer and report on a proposed schedule for the remainder of the case.

II. LEGAL STANDARD

The court is addressing a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). One ground for such a motion is mootness. See Valentín v. Hospital Bella Vista, 254 F.3d 358, 362–63 (1st Cir.2001).

Under Article III of the Constitution, federal courts do not have jurisdiction “to give opinions upon moot questions.” Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). A case is moot “if the court is not capable of providing any relief which will redress the alleged injury.” Gulf of Maine Fishermen's Alliance v. Daley, 292 F.3d 84, 88 (1st Cir.2002).⁴ “The burden of establishing mootness rests squarely on the party raising it, and ‘[t]he burden is a heavy one.’ ” Mangual v. Rotger–Sabat, 317 F.3d 45, 60 (1st Cir.2003) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)); see also ConnectU LLC v. Zuckerberg, 522 F.3d 82, 88 (1st Cir.2008).

As plaintiff is proceeding pro se, his pleadings must be liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Instituto de Educacion Universal Corp. v. United States Dep't of Educ., 209 F.3d 18, 23 (1st Cir.2000). However, in deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), a court may consider evidence submitted by a defendant in addition to crediting factual allegations made in a complaint. See Aguilar v. U.S. Immigration & Customs Enforcement Div. of Dep't of Homeland Sec., 510 F.3d 1, 8 (1st Cir.2007); see also Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir.2010).

There are two types of Rule 12(b)(1) challenges, facial and factual. “[W]hen a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) involves factual questions ... the court must determine whether the relevant facts, which would determine the court's jurisdiction, also implicate elements of the plaintiff's cause of action.” Torres–Negrón v. J & N Records, LLC, 504 F.3d 151, 162–63 (1st Cir.2007). “[I]f the facts relevant to the jurisdictional inquiry are not intertwined with the merits of the plaintiff's claim, ... ‘the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.’ ” Id. at 163 (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990)). However, “where the jurisdictional issue and substantive claims are so intertwined the resolution of the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard applicable to a motion for summary judgment.” Id. (internal quotation and punctuation omitted) (quoting Autery v. United States, 424 F.3d 944, 956 (9th Cir.2005)). “Thus, where the relevant facts are dispositive of both the 12(b)(1) motion and portions of the merits, the trial court should grant the motion to dismiss ‘only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.’ ” Id. (internal quotation omitted) (quoting Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1558 (9th Cir.1987)).

In the instant case, defendants make a factual challenge based on mootness. Resolution of the mootness question is dependent on factual matters going to the merits. Therefore, the jurisdictional issue and substantive claims are intertwined. Accordingly, to satisfy their “heavy” burden of showing mootness, Mangual, 317 F.3d at 60, defendants must demonstrate that no material jurisdictional facts are in dispute and that they are entitled to prevail as a matter of law. See Torres–Negrón, 504 F.3d at 163. Moreover, as with a motion for summary judgment, plaintiff is entitled to additional discovery if he can show: “(i) good cause for his inability to have discovered or marshalled the necessary facts earlier in the proceedings; (ii) a plausible basis for believing that additional facts probably exist and can be retrieved within a reasonable time; and (iii) an explanation of how those facts, if collected, will suffice to defeat the pending” motion. Rivera–Torres v. Rey–Hernández, 502 F.3d 7, 10 (1st Cir.2007) (discussing predecessor to Federal Rule of Civil Procedure 56(d)).

As described below, the court concludes that material facts are in genuine dispute, or may be if plaintiff is afforded additional discovery, and that defendants have not now shown that they are entitled to prevail as a matter of law. Therefore, defendants have not satisfied their heavy burden, and the Renewed Motion to Dismiss for mootness is not meritorious.

III. BACKGROUNDA. ESA Statutory Framework

The ESA “was enacted in 1973 to prevent the extinction of various fish, wildlife, and plant species.” Turtle Island Restoration Network v. Nat'l Marine Fisheries Serv., 340 F.3d 969, 973 (9th Cir.2003). It authorizes “the Secretary of the Interior to promulgate regulations listing those species of animals that are ‘threatened’ or ‘endangered’ under specified criteria, and to designate their ‘critical habitat.’ ” Bennett v. Spear, 520 U.S. 154, 157–58, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting ESA § 4, 16 U.S.C. § 1533). Blue, fin, humpback and right whales are all listed species. See50 C.F.R. §§ 17.11(h) & 224.101(b). Of these species, only the North Atlantic right whale has designated critical habitat, which is defined as: Cape Cod Bay, Massachusetts; the Great South Channel, which runs between Nantucket Shoals and Georges Bank off Cape Cod, Massachusetts; and the coastal waters of the southeastern United States running roughly between Brunswick, Georgia, and Cape Canaveral, Florida. See 50 C.F.R. § 226.203; see also id. § 224.105, Figs. 1–3; 59 Fed.Reg. 28,793, 28,806–08 (June 3, 1994). The ESA provides a variety of protections for endangered species once a species is listed or critical habitat is designated.

1. ESA § 7

Section 7 of the ESA “directs federal agencies to insure that agency action ‘is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.’ ” Water Keeper Alliance v. U.S. Dep't of Def., 271 F.3d 21, 25 (1st Cir.2001) (quoting ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2)). “This substantive requirement is backed up by a scheme of procedural requirements that set up a consultation process” between the federal agency and the overseeing federal service, the NMFS or the United States Fish and Wildlife...