Massachusetts’ Permitting of Lobster Fishing in Hot Water Over ESA Violation

The United States District Court of Massachusetts dealt a blow to the state’s Division of Marine Fisheries and lobster fishing industry in a decision issued on April 30, 2020. The case, which was heard by District Judge Indira Talwani, concerned whether the agency had run afoul of the federal Endangered Species Act (ESA) by permitting the use of vertical buoy ropes in lobsterpot fishing despite the threat they pose to the North Atlantic Right Whale.

So named because they were easy to kill and strip for blubber—making them the “right” whale to hunt—the North Atlantic right whale has been hunted to the edge of extinction and is now an endangered species protected under the ESA and the Marine Mammal Protection Act. According to the National Oceanic and Atmospheric Administration (NOAA), the species’s population declined from over 500 to approximately 411 individuals between 2010 and 2017, and fewer than 100 breeding females remain in the wild. (Strahan v. Sec'y, Massachusetts Exec. Office of Energy & Envtl. Affairs, 2020 WL 2079302 at 15-16 (D. Mass. Apr. 30, 2020)). NOAA has also indicated that encounters with fishing gear are the most frequent cause of serious injuries and deaths for right whales in recent years, with vertical buoy ropes (VBRs)—fixed fishing gear with a vertical line from the ocean floor to the surface— posing the largest threat. (Id. at 16). NOAA estimates that there are 1,000,000 VBRs in the ocean along the right whales’ migratory route and that 85% of right whales have been entangled in fishing gear at least once.

The plaintiff in this case, Max Strahan, is a colorful character known to some as “the Prince of Whales” who has sued Massachusetts’ Division of Marine Fisheries (DMF) several times since 1995 over its permitting of VBRs for lobsterpot fishing. In this instance, Strahan alleged that the agency violated Section 9 of the ESA, which prohibits “[v]irtually all dealings with endangered species, including taking, possession, transportation, and sale.” The statute defines “taking” in the broadest possible manner, including to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a protected species. This prohibition extends not only to direct takings, but also to attempting, soliciting, or causing someone else to commit a taking of these species, and governmental actors may be found liable under this provision for permitting activities that are likely to result in an act prohibited by the ESA. (16 U.S.C § 1538(g); see Strahan v. Coxe, 127 F.3d 155, 164 (1st Cir. 1997)).

Mr. Strahan filed a lawsuit seeking to stop the licensing and require DMF to obtain a permit. The court granted Mr. Strahan’s request in part and denied it in part.

First, the court found that Mr. Strahan demonstrated a strong likelihood of success on his claim that DMF violated the ESA by permitting the use of VBRs in state waters. More specifically, the court determined that—despite the agency’s efforts—the evidence demonstrated DMF-licensed VBRs have harmed and will continue to harm right whales. The court also found relief appropriate on the basis that, even in the absence of a right whale death that was specifically caused by a state-licensed VBR, continued entanglements will hasten the extinction of the species by increasing the likelihood of trauma wounds from rope cuts, damage to baleen plates that can prevent efficient filter feeding, and the detrimental effect that VBRs have on female right whales’ ability to breed. Allowing DMF to continue permitting VBRs would, in the court’s assessment, likely result in harms that cannot later be cured.

Nevertheless, the court refrained from enjoining the DMR’s permitting of VBRs in the interest of equity. Instead, Judge Talwani ordered DMF to apply for an Incidental Take Permit (ITP). Section 10 of the ESA allows ITPs for a take that is incidental to, rather than the purpose of, carrying out an otherwise lawful activity. The court reasoned that an immediate injunction would be inequitable in light of DMF’s previous efforts and the impact that such a disruption would have on Massachusetts’ fishing industry. Moreover, per the court’s opinion, the ESA vests the authority to decide which Section 9 violations are permissible with NOAA Fisheries—not the judiciary. Should DMF fail to obtain an ITP by the end of July 2020, however, Judge Talwani left the door open for Mr. Strahan to seek another injunction.