“Prince of Whales” threatens lawsuit against Maine Lobstering Union members

BANGOR — Richard Max Strahan, a New Hampshire-based whale protection activist with a history of filing federal lawsuits aimed at protecting endangered right whales against the New England fishing industry, may be headed back to court.

Strahan has threatened to sue the Maine Lobstering Union (MLU), the Maine Lobstermen’s Association (MLA) and their individual members for damages under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act.

The statement was contained in papers Strahan filed Monday in the U.S. District Court in Bangor in a lawsuit he began last year under the self-styled name “Man Against Xtinction.”

Naming the commissioner of the Department of Marine Resources and the assistant administrator of the National Marine Fisheries Service (NMFS) as defendants, the suit asked the court to rule that the decision by NMFS to allow the Maine lobster fishery violates the law governing federal administrative procedures and, consequently, the federal Endangered Species Act.

The complaint also asks the court to issue an injunction against the state and federal governments against allowing further fishing. Strahan himself is not listed as the plaintiff on the court’s docket.

This past winter, the Maine Lobstering Union asked the court for permission to intervene as a party to the lawsuit.

This week, Strahan, sometimes known as the “Prince of Whales” for his years of activism aimed at protecting endangered whales, filed two separate objections to allowing the union to join the lawsuit.

He warned that he would file separate lawsuits “seeking a million dollars in compensatory and punitive damages against MLU and each of its members” if the court allowed the intervention.

Strahan also threatened to file federal RICO Act suits against the union, the Maine Lobstermen’s Association, its individual members, NMFS and DMR. The RICO statute allows for treble damages to be assessed against defendants in certain cases.

Strahan filed his case without an attorney representing him and was allowed to proceed in forma pauperis without having to pay required filing fees. As a general rule, parties that appear in federal court without representation have considerable latitude in meeting deadlines, which sometimes leads to delay, and in filing documents that don’t comply strictly with other procedural rules.

While the merits of the arguments remain to be determined by the court, Strahan’s filings reflect the hand of someone experienced in crafting legal documents.

In January, NMFS asked the federal court to dismiss Strahan’s two-count complaint. Last month, District Court Judge Lance E. Walker issued a split decision, dismissing one count but leaving the other, and the central issues in the case, alive.

The decision hinged on a technical analysis of three federal laws: the Endangered Species Act, the Marine Mammal Protection Act (MMPA) and the Administrative Procedures Act, which controls how federal agencies proceed when exercising their regulatory functions.

The court found that Strahan had, at least for preliminary purposes, stated enough facts to show that NMFS “acted arbitrarily, capriciously, or not in accordance the law when it failed to meet its obligations” under two sections of the Endangered Species Act.

The court also found that Strahan had stated enough facts to show that he personally was damaged by the alleged actions — both as a paid conservation activist and as someone who enjoyed activities such as whale watching.

Strahan’s complaint relates not just to the regulation of vertical buoy lines used in the lobster fishery but also to the regulation of gill nets, which are designed to ensnare fish that try to swim through them.

The court allowed Strahan’s action to continue, but it did not issue a preliminary injunction against the use of vertical lines (or gill nets) off the Maine coast. Strahan dropped his request for a preliminary injunction shortly after filing his complaint.

Strahan hasn’t limited his legal activities to an attempt to end the Maine lobster fishery. Last year, he also filed a suit in the U.S. District Court in Massachusetts seeking an injunction against state fisheries authorities from “licensing the use of vertical buoy ropes” by lobstermen in the state’s coastal waters. On April 30, a federal judge issued a preliminary injunction granting much of what Strahan wanted.

Commenting last week on the Maine court’s decision, Stephen Ouellette, an attorney from Gloucester, Mass., who is following Strahan’s lawsuit against Massachusetts fisheries authorities, said, “Even more troubling is the decision in the USDC for Massachusetts, giving the Commonwealth 90 days to obtain an incidental take permit (from NMFS as called for by the MMPA), or face having to revoke all Massachusetts coastal lobster permits.”

Massachusetts lobstermen are required to have coastal permits issued by their state’s fisheries regulators to set gear in Massachusetts waters.

NMFS has already acknowledged in the lawsuit now pending in the federal district court in Washington, D.C., that it is unable to issue an incidental take permit for lobster traps rigged with vertical buoy lines, “so the lobster fishery is on a collision course with the ESA and MMPA in the federal court in D.C., Massachusetts and Maine,” Ouellette said.

Stephen Rappaport

Stephen Rappaport

Waterfront Editor at The Ellsworth American
Stephen Rappaport has lived in Maine for nearly 30 years. A lifelong sailor, he spends as much time as possible messing about in boats. [email protected]

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