Strahan loses a round in Massachusetts whale case



ELLSWORTH — It was almost exactly 400 years ago that the poet and Church of England cleric John Donne told congregants and other readers to “send not to know for whom the bell tolls, it tolls for thee,” but he might well have been addressing Maine’s 6,200 licensed lobstermen.

Last July, in a case filed by right whale protection activist Richard Max Strahan, U.S. District Court Judge Indira Talwani ruled that Massachusetts fisheries regulators violated the federal Endangered Species Act.

They did so, she determined, by allowing lobster fishing in state waters with gear using vertical lines to connect traps on the sea floor to buoys on the surface without first receiving an “incidental take permit” from the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service.

Strahan asked the court for a preliminary injunction to stop the fishery, but the judge gave Massachusetts 90 days to get the required permit.

Last Thursday, with the 90-day period passed and no permit from NMFS in sight, the judge again denied Strahan’s request for a preliminary injunction without prejudice, meaning Strahan may ask for an injunction again, and gave the state some additional time to get the necessary permit, but she was clearly unhappy with the delay. She ordered the attorneys for Strahan and for the state to file suggested schedules for a trial by Thursday, Oct. 15. The judge directed attorneys for the defendant Massachusetts Executive Office of Energy and Environmental Affairs to file reports with the court every 30 days starting Oct. 15 “to tell me what you’re doing to comply with my order to get an incidental take permit.”

For now, with Massachusetts lobstermen starting to haul their gear for the season, lobster fishing is still allowed in state waters but whether that will still be the case come spring is uncertain at best.

Speaking by telephone, the judge said Strahan had already met all the requirements for obtaining a preliminary injunction but that a “balancing of equities” had kept her from “shutting down the lobster industry completely.” That could change after a bench trial, with no jury, on what the scope of the preliminary injunction, and the remedy for the ongoing ESA violation, should be.

“I’m not doing a preliminary injunction hearing just on the papers,” the judge said. “We have to have an evidentiary hearing” and “make a determination on the remedy if the plaintiff (Strahan) proves his case.”

The likelihood is that the hearing the judge wants will come sooner rather than later.

The attorneys representing the state said that the case “needs to be resolved as quickly as possible.” Strahan’s lawyer, San Francisco attorney Adam Keats, said he would be ready for a trial in January “or earlier if the court orders.”

Judge Talwani told the attorneys that “time is of the essence,” in setting a trial date and that waiting for NMFS to act could lead to “years and years of delay.”

While last week’s action affects only the Massachusetts lobster industry, the judge’s words should echo loudly in Maine.

Earlier this month, Strahan gave a 60-day notice to NMFS and to the Department of Marine Resources of his intent to file a lawsuit in the federal district court in Maine seeking an injunction prohibiting DMR from issuing lobster fishing licenses for 2021. The suit, he said in his notice, would make claims substantially identical to the Massachusetts case in which the judge has already ruled that lobster fishing using vertical lines violates the ESA.

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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