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Commercial Fisheries News
Volume 34 Number 7
March 2007
Court orders MA to monitor entanglements
BOSTON, MA – A federal district court judge has denied a motion for a preliminary injunction seeking to prevent the commonwealth of Massachusetts from issuing fixed-gear licenses – but only for two years.
In the meantime, the court ordered the state to monitor and file regular reports documenting, among other things:
Whale entanglements by commercial fishermen with Massachusetts licenses fishing in state and/or federal waters;
Compliance with the new regulation, which went into effect on Jan. 1, that requires fishermen to use sinking groundline in lobster trawls throughout state waters; and
Advances in the development of “whale-safe” technology.
Serious challenge
The decision, issued by Judge Nathaniel Gorton of the US District Court District of Massachusetts on Jan. 24, stems from yet another case brought by long-time whale-protection campaigner Max Strahan.
In his ruling, Gorton noted that the issues in the case were nearly identical to those Strahan raised in another case more than 10 years ago in which he claimed that the very act of issuing a commercial license that allowed a fisherman to use fixed gear capable of entangling an endangered whale was illegal.
In that 1996 case, Judge Douglas Woodlock found that Strahan had standing to pursue his claims and that state officials could be held liable for violations of the Endangered Species Act (ESA).
That decision led to a court-approved agreement, which led to the elimination of floating groundlines from all state waters as of 2007, seasonal restrictions on fixed-gear fishing in the Cape Cod Bay critical habitat area, and weak link and sinking line gear modification requirements.
In January 2002, satisfied with the progress being made to protect the whales, Woodlock dismissed the case with the agreement of all parties involved.
Max is back
But Strahan was back in court again in 2006, seeking additional action to force the state to further restrict – and even prohibit – commercial fishing activities that might pose a threat to whales.
He alleged that three northern right whales and five humpback whales had been entangled in or near Massachusetts waters between June and November of 2002. He further alleged that four of those entanglements involved fishing gear licensed by the Massachusetts Division of Marine Fisheries.
Specifically, Strahan asked the court to:
Issue an order enjoining the state from further “licensing and deployment of” allegedly harmful fishing gear “until it has been scientifically certified to pose no risk of danger to protected whales;”
Issue an order requiring the state to fund research and development of whale-safe gear and to amend regulations to allow only whale-safe fishing gear in the future;
Issue an order requiring that the defendants fund efforts to “increase the size of the whale population;” and
Award costs and any other relief the court deems appropriate to the plaintiff (Strahan).
Findings
The evidence in the case was presented during a three-day hearing in November. In his ruling, Judge Gorton observed that “while Strahan demonstrates an admirable facility with the law and a true passion for whale conservation, his lack of formal legal training and somewhat abrupt courtroom demeanor have handicapped the prosecution of his claims.”
Nevertheless, the judge said he had done his best “to accommodate the plaintiff’s presentation and to evaluate the evidence that has been presented in a haphazard manner.”
Basically, Gorton said the evidence led him to believe that it was “remarkably difficult to determine where or when a whale becomes entangled” and, therefore, difficult to determine specifically who – a Massachusetts licensed or non-Massachusetts licensed fisherman – is liable for an entanglement.
As a result, the court found that it was unlikely Strahan could prove that state officials had violated the ESA.
Not inevitable
The judge ruled that the evidence established three facts: endangered whales can become entangled in fixed fishing gear; fixed fishing gear is licensed by state officials and deployed in state waters; and endangered whales are known to exist in state waters.
However, Gorton disagreed with Strahan’s subsequent assertion that these established facts lead to the inescapable conclusion that whales will continue to be entangled in fixed gear in state waters.
“A recent change in state fishing regulations … undermines the plaintiff’s contention that whale entanglements are inevitable,” he said.
State remedies
The judge noted that the new regulation requiring the use of sinking groundlines throughout Massachusetts state waters would, according to expert witnesses, “render the risk of groundline entanglements nearly nonexistent.”
And while Strahan argued that vertical buoy lines posed an even greater threat than groundlines, Gorton noted that three witnesses had testified that “sinking (ground) line will reduce the threat to whales by removing a significant proportion of existing line from the water column.”
Regarding the threat posed by gillnets, Gorton noted that gillnetting is “already subject to extensive regulation.”
He added that unless current regulations – including federal seasonal area management, or SAM, and dynamic area management, or DAM, actions – are shown to be ineffective, “the court defers to the experience and judgment of trained marine regulators.”
And as to Strahan’s demand that the state require fishermen to use gear that is even more “whale-safe” than the weak links and sink line currently available, Gorton said he would not intervene.
“The court is not prepared to order governmental agencies to develop or implement whale-safe fishing gear without regard to cost or practicality,” he said.
However, he added that he would expect state officials to continue to monitor developments in the field of fishing technology and, “as with sinking groundline, consider enforcing the use of any technology that is feasible, practical, and effective in promoting whale safety.”
Gorton further ordered the state to provide the regular reports on entanglements, sinking groundline compliance, and new technology as described above on Oct. 1, 2007, July 1, 2008, and Feb. 1, 2009.
After that, the judge said the court would review Strahan’s complaint again. n
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