Right Whale Case Alright to Proceed Past Motion to Dismiss

The self-proclaimed activist “Prince of Whales,” Richard Strahan, received a partial victory this week in his lawsuit alleging that Massachusetts’ regulations requiring lobster fisherman to use certain gear violate the Endangered Species Act.

The North Atlantic right whale is an endangered species, with fewer than 500 remaining.  As such, the right whale is protected by the Endangered Species Act (“ESA”), which makes it illegal to “take” an endangered species.  16 U.S.C. § 1538(a)(1)(B).  This prohibits people and governments from “harass[ing], harm[ing], pursu[ing], hunt[ing], shoot[ing], wound[ing], kill[ing], trap[ping], captur[ing], or collect[ing]” the species.  16 U.S.C. § 1532(19).  Unlike other statutes that seek to protect animals, such as the Animal Welfare Act, the ESA includes what is a called a “citizen suit provision,” which allows private individuals to file lawsuits to stop an alleged violation of the ESA.  16 U.S.C. § 1540(g).

Strahan is an avid whale watcher and sea turtle researcher, and frequent litigant.  He alleges that Vertical Buoy Ropes (“VBRs”), which are used to identify and retrieve lobster traps, harm, capture, and kill right whales, and thus that Massachusetts violates the ESA by promulgating regulations that require Massachusetts lobster fisherman to deploy gear like VBRs.  The state defendants moved to dismiss the case.

On February 7, 2020, United States District Judge Talwani granted in part and denied in part the motion to dismiss.  She found that “Plaintiff plausibly concludes that the State Defendants have caused a taking in violation of the [ESA]” because he plausibly alleged that “annually in recent years, five endangered right whales were killed or injured from lobsterpot gear” and that “almost half of all lobsterpot activity occurs in Massachusetts waters.”  The Court noted that these allegations do not prove that Massachusetts-regulated VBRs have killed or injured right whales, but are sufficient at the early stage in the case to survive a motion to dismiss.

The Court went on to dismiss Strahan’s other two counts.  Count II alleged that the state defendants violated the ESA by adversely altering critical habitats, which the Court found to be duplicative of the ESA count she allowed to proceed.  Finally, the Court dismissed Count III, which alleged that the director of the Massachusetts Division of Marine Fisheries violated the Massachusetts Civil Rights Act by undertaking various actions to dissuade Strahan from filing this lawsuit, holding that the Eleventh Amendment protects state officials from claims that they violated state law in carrying out their official responsibilities.

Strahan’s single count regarding the VRBs’ impact on right whales will now move forward, and he will be required to prove the “take.”  The issue of whale entanglement in ropes that connect to crab and lobster pots is a hot topic in research and conservation.  Recently, the SeaWorld & Busch Gardens Conservation Fund announced that it has committed $900,000 over three years to evaluate ropeless crab and lobster traps (see https://www.whoi.edu/press-room/news-release/seaworld-busch-gardens-conservation-fund-commits-900000-to-protect-critically-endangered-north-atlantic-right-whales/).