Strahan v. Massachusetts Executive Office of Energy and Environmental Affairs et al

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART PRELIMINARY INJUNCTIVE RELIEF. Please see attached Memorandum and Order.

District of Massachusetts, mad-1:2019-cv-10639

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1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS RICHARD MAX STRAHAN, * * Plaintiff, * * v. * Civil Action No. 19-cv-10639-IT * SECRETARY, MASSACHUSETTS * EXECUTIVE OFFICE OF ENERGY AND * AND ENVIRONMENTAL AFFAIRS, * et al., * * Defendants. * MEMORANDUM & ORDER GRANTING IN PART AND DENYING IN PART PRELIMINARY INJUNCTIVE RELIEF April 30, 2020 TALWANI, D.J. Before the court is Plaintiff Richard Max Strahan's Motion for Preliminary Injunction [#144]. Plaintiff requests interlocutory relief enjoining the Massachusetts Executive Office of Energy and Environment Affairs ("MEOEEA") and the Director of the Massachusetts Division of Marine Fisheries ("Fisheries Division") from licensing the use of vertical buoy ropes ("VBRs") in Massachusetts coastal waters and requiring them to immediately apply for an Incidental Take Permit pursuant to Section 10 of the Endangered Species Act. Plaintiff argues that VBRs harm and kill critically endangered animals such as the North Atlantic right whale (the "right whale"), and that Defendants' licensing of VBRs for use in lobsterpot and gillnet fishing in Massachusetts state waters without an Incidental Take Permit therefore violates the Endangered Species Act's provisions prohibiting the harming, harassing, or killing of endangered species. 1 1 For the reasons stated below, the court finds that Plaintiff is likely to prevail on his claim that the deployment of VBRs in Massachusetts waters has violated and will continue to violate the Endangered Species Act. Although Defendants and Massachusetts fishermen have made substantial efforts to protect endangered whales from VBRs and may well have made greater efforts than other jurisdictions, Plaintiff is likely to be able to establish that Massachusetts VBRs have harmed and will continue to harm these animals and that the continued deployment of these ropes thus violates Congress's directive that all harmful contacts with endangered animals are to be prohibited, whatever the cost. However, Congress has set forth a permitting process through appropriate expert agencies that allows for the incidental taking of endangered species if the agency is satisfied that such incidental takes will, among other things, not threaten the survival of the species. The determination to allow such takings, however, is for the expert agency, and not the court, to make. Accordingly, the court GRANTS Plaintiff's motion to the extent that it seeks an order directing the Defendants to obtain an Incidental Take Permit if they are to continue licensing the use of VBRs in Massachusetts coastal waters. Recognizing the inequitable hardship posed to Massachusetts fishermen and the fishing industry if the court immediately enjoins the use of VBRs, the court declines to order the further relief sought by Plaintiff at this time. But, because it was Congress's plain directive that activities that harm endangered species must come to an end unless otherwise permitted by law, Plaintiff may renew his motion for a preliminary injunction in 90 days if Defendants have not obtained an Incidental Take Permit allowing the continued licensing of VBRs in Massachusetts state waters. 2 1 I. The Endangered Species Act Congress enacted the Endangered Species Act (the "Act" or "ESA") in 1973. The Act's stated purpose was "to provide a program for the conservation of such endangered species and threatened species" based on Congress's finding that various species of animals had been "rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation" and that other species "have been so depleted in numbers that they are in danger of or threatened with extinction." 16 U.S.C. §§ 1531(a)(1)&(2), (b). The ESA "represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978) ("TVA"). Among other provisions, Section 9 of the Act made it so that "[v]irtually all dealings with endangered species, including taking, possession, transportation, and sale, were prohibited, except in extremely narrow circumstances." TVA, 437 U.S. at 180 (citations omitted). Congress broadly defined a "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" a protected species. 16 U.S.C. §§ 1532(19), 1538(a)(1)(B); see also Strahan v. Coxe, 127 F.3d 155, 162 (1st Cir. 1997) ("'Take' is defined. . . in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife"). To be sure, Congress understood the potential economic impact of these restrictions; as the Supreme Court has noted, "[t]he plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." TVA, 437 U.S. at 184. The ESA not only prohibits the direct take of endangered species, but also renders it unlawful for anyone "to attempt to commit, solicit another to commit, or cause to be committed, any offense defined" in the Act. 16 U.S.C § 1538(g). In Strahan v. Coxe, the First Circuit concluded that governmental actors could be found liable under the Act where "the state has 3 1 licensed commercial fishing operations to use gillnets and lobster pots in specifically the manner that is likely to result in a violation of federal law." 127 F.3d at 164. Section 9's prohibition on takes of endangered species is extremely broad but not absolute. Section 10 of the Act contains a relief valve in the form of Incidental Take Permits that may be issued by the Secretaries of Interior or Commerce. The Secretaries have charged the National Marine Fisheries Service ("NMFS" or "NOAA Fisheries") with administering the incidental take permitting process for marine species. Incidental Take Permits exempt an actor from liability under Section 9 of the Act if they cause a take that was "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B). The process and requirements for obtaining such a permit are laid out by statute and regulation. The applicant must submit a conservation plan that specifies, inter alia, the impact from the proposed take and the steps being taken to minimize and mitigate those impacts. If NOAA Fisheries finds that, by the conservation plan, "the applicant will, to the maximum extent practicable, minimize the impacts of such taking" and that "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild," then NOAA Fisheries may issue a permit that may also be accompanied by "such terms and conditions as the Secretary deems necessary or appropriate to carry out the purposes" of the incidental take provisions. 16 U.S.C. § 1539(a)(2)(B); see also 50 C.F.R. § 222.307. Without an Incidental Take Permit or other lawful exemption, every take of an endangered species constitutes a Section 9 violation. The right whale, Eubalaena glacialis, is an endangered species protected under the Act. 50 C.F.R. § 17.11. 4 1 II. Procedural Background and Related Actions The claims here—that the use of VBRs harm and kill critically endangered right whales and that permitting of VBRs in lobsterpot and gillnet fishing violates the ESA—are not new. Plaintiff has prosecuted such claims in the District of Massachusetts in fits and starts since 1995. Because these actions provide context for the present motion, the court reviews them briefly before discussing three challenges to VBRs from outside this district. In 1995, Plaintiff sued the Defendants, alleging, inter alia, violations of the ESA. Strahan v. Coxe, No. 95-10927-DPW (D. Mass.). As here, Plaintiff requested a preliminary injunction. Following an evidentiary hearing, the court, Woodlock, J., found it "clear that endangered whales use Massachusetts coastal waters where gillnets and lobster gear are placed, and that gillnets and lobster gear have harmed endangered whales and are likely to continue doing so." Strahan v. Coxe, 939 F. Supp. 963, 989 (D. Mass. 1996). So finding, the court determined that interlocutory relief was warranted. The court ordered Defendants to apply for an Incidental Take Permit from NOAA Fisheries and, in the meantime, to develop a proposal that would "restrict, modify or eliminate the use of fixed-fishing gear in coastal waters of Massachusetts listed as critical habitat for Northern Right whales in order to minimize the likelihood additional whales will actually be harmed by such gear." Id. at 990. The court further ordered the commission of a working group to facilitate substantive discussions between the parties on what might be done to minimize the likelihood of harm to right whales from fishing gear. On appeal of the preliminary injunction, the First Circuit upheld Judge Woodlock's order that Massachusetts apply for an Incidental Take Permit under the Endangered Species Act. Strahan v. Coxe, 127 F.3d at 164.1 1 Plaintiff had also sought relief in that case under the Marine Mammal Protection Act of 1972 ("MMPA") and Judge Woodlock ordered Defendants to apply for an Incidental Take Permit 5 1 On remand, and "[a]fter allowing several years of experience with the additional protective measures developed by the Commonwealth in consultation with various interested parties as a consequence of the interlocutory relief," the court determined that "it was appropriate to bring the case to final judgment." Order, Strahan v. Coxe, No. 95-10927-DPW (D. Mass. Mar. 29, 2001), ECF No. 420. Judge Woodlock found that the additional protective measures undertaken, in part, through administrative rulemaking, transformed "the factual predicates upon which this litigation proceeded," and stayed the proceedings while Defendants negotiated a resolution with an intervening plaintiff, the Conservation Law Foundation ("CLF"), over Mr. Strahan's objection. Id. In April 2001, the CLF entered a settlement agreement with at least some of the Defendants. Stipulation (Apr. 27, 2001), ECF No. 426. Shortly thereafter, on Plaintiff's motion for dismissal of his claims, Judge Woodlock dismissed Mr. Strahan's claims with prejudice. Order of Dismissal (July 19, 2001), ECF No. 436 (dismissing action with prejudice); see also ECF No. 438 (clarifying order). In 2005, Plaintiff brought another action against, largely, the same Defendants. Strahan v. Diodati et al., No. 05-10140-NMG (D. Mass.). In his new complaint, Plaintiff alleged that in the years since the dismissal of his prior action, endangered whales had continued to become entangled in gear such as VBRs licensed by the Defendants. Complaint at ¶¶ 17-18 (Jan. 21, 2005), ECF No. 3. Plaintiff again requested, in addition to other relief, a preliminary injunction enjoining Defendants from further licensing the deployment of fishing gear such as VBRs until under both the Endangered Species Act and the Marine Mammal Protection Act. The First vacated the order as it related to the MMPA, finding that the district court had no jurisdiction to hear a citizen suit under the MMPA, and the court therefore could not order a remedy requiring compliance with the MMPA. Strahan v. Coxe, 127 F.3d at 161. Plaintiff does not bring a MMPA claim in the present action. 6 1 such gear was proven not to pose a threat to endangered whales. Pl.'s Mot. Temp. Restraining Order and Prelim. Injunction (Jan. 21, 2005), ECF No. 2. After hearing three days of testimony, the court, Gorton, J., found that Plaintiff had not demonstrated a "'strong showing' of likelihood of success on the merits on his underlying claim that the defendants have violated the ESA" because Plaintiff had "presented no conclusive evidence demonstrating that protected whales have, since 2002, become entangled in Massachusetts coastal waters or in fishing gear licensed by the defendants." Strahan v. Pritchard, 473 F. Supp. 2d 230, 238 (D. Mass. 2007) (citing In r