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Commercial Fisheries News
Volume 34 Number 8
April 2007
Max sues MA lobsterman over entanglement
BOSTON, MA – Max Strahan took his aggressive whale protection campaign to a whole new level late in February when he filed suit against an individual lobsterman whose gear was found on an entangled humpback whale last summer.
As part of the complaint filed on Feb. 27 in the US District Court for the District of Massachusetts against Dan Holmes of Plymouth, Strahan is seeking $1.1 million in damages.
Of that amount, $100,000 is for “compensatory” damages, which is supposed to compensate the “injured party,” and $1 million is for “punitive” damages, which, in legalese, is intended “solely to punish the plaintiff because of reckless or malicious acts.”
Holmes, who is 35 and married with two young children, fishes with gear that complies with state and federal law, a fact confirmed by state and National Marine Fisheries Service (NMFS) officials.
“My gear is all whale safe and Massachusetts- and federal-law compliant,” Holmes said. “How can I be sued for abiding by the law? If I lose this case, every fixed gear fisherman from Nova Scotia to the Gulf of Mexico will be subject to court cases like this.”
“One jerk at a time”
That, in fact, is just what Strahan has in mind. In a bizarre Dec. 7 e-mail to Massachusetts Lobstermen’s Association (MLA) attorneys, he put the MLA on notice that he intended to enforce the Endangered Species Act (ESA) against any association member whose gear is found on a whale or sea turtle.
“I will be suing independently any fishie (sic) guy who entangles a whale,” Strahan wrote.
He added that he would be asking the court to issue an injunction to stop such fishermen from ever fishing again.
“Stopping the killing of whales one jerk at a time is probably what a federal judge will more easily agree to,” Strahan wrote.
Through multiple lawsuits, Strahan, the self-titled “Prince of Whales” who is affiliated with a group called GreenWorld, has managed to win court-mandated agreements to require the use of modified gear – breakaways and no floating groundlines – and other restrictions in Massachusetts state waters over the last two decades.
However, he has been frustrated in his repeated attempts to convince the court to order the Massachusetts Division of Marine Fisheries to stop issuing permits for any fishery that uses gear that has the potential to entangle endangered whales.
Clearly delighted at the prospect of subjecting even law-abiding lobstermen to the crippling expense and anxiety of his lawsuits, Strahan concluded his Dec. 7 e-mail with a personal threat against MLA Executive Director Bill Adler and member Gary Ostrom, who pioneered the original program to remove ghost gear from Cape Cod Bay.
“I don’t know why I have bothered to tell you all this,” Strahan wrote. “I guess it’s the excitement of bringing the MLA, Bill Adler, and Gary Ostrom to justice. I can’t wait!!!”
Whale entanglement
The whale entanglement at the heart of Strahan’s case against Holmes was reported by a sport fisherman on Aug. 2 a few miles east of Plymouth.
A disentanglement team from the Provincetown Center for Coastal Studies responded to the situation. According to field notes published by the center on its web site, the team found the whale with a “set of lobster gear,” including rope, buoys, and a lobster trap, in its mouth.
The report does not mention any injury but does note that the gear made it difficult for the humpback whale to move normally, and so the team decided to remove it. Once freed, “the whale swam off quickly,” the center said.
The gear was saved and turned over to NMFS, which attempts to identify the kind of gear involved in entanglements and, when possible, the owner in order to figure out where and when the gear was set.
The information is used to get a better handle on where entanglements occur and what can be done to make gear less likely to entangle marine mammals.
Name revealed
NMFS policy always has been to keep confidential the names of fishermen whose gear is involved in an entanglement. However, in this case, the court directed NMFS to release the name to Strahan to help him prepare a different case against the commonwealth of Massachusetts (see CFN March 2007 for details).
In a statement on the matter, NMFS spokesman Teri Frady explained, “Despite the Department of Justice’s strong objection, the judge ordered us to turn over the name. We had conducted a full investigation and determined the gear was set in federal waters and was compliant with the law, so no charges were filed.”
Holmes said he had talked to the NMFS staffer who had to comply with the court order and it was clear that the staffer “felt terrible” about it.
“I’m not mad at NMFS or the state,” the lobsterman said. “Max (Strahan) kind of tricked the judge into making them release my name.”
As an aside, all of the paperwork Strahan filed with the court refers to David Holmes even though the fisherman’s first name actually is Daniel.
Civil case
Strahan is bringing this civil action against Holmes under a provision described in Section 11 of the ESA, which allows “any person” to file suit to enjoin another person, including federal and state officials or agencies, “who is alleged to be in violation of any provision of (the ESA) or regulation issued under the authority of (the ESA).”
The ESA prohibits the “taking” of any endangered animal and defines the term “take” as meaning to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct.”
Calling himself “Citizen Prosecutor Endangered Whales of Massachusetts,” Strahan told the court that, in addition to the $1.1 million award, he is seeking to permanently ban Holmes from “engaging in commercial fishing of any kind in the future.”
He further told the court that the use of fixed lobster gear, specifically vertical buoy lines, in the presence of whales amounted to “reckless fishing practices” and that he was seeking a declaratory judgment that the use of vertical lines in and of itself “constitutes an inherent violation of federal law protecting endangered wildlife.”
Interestingly, the same court issued a decision on Jan. 24 in the separate case Strahan filed against Massachusetts officials on similar grounds. In that instance, the court declined to limit the Division of Marine Fisheries (DMF) permitting authority or force DMF to require lobstermen to further modify their gear.
However, the court did order the state to monitor and file regular reports documenting entanglements made by Massachusetts fishermen, compliance with the state’s new ban on floating groundlines, and on advances in whale-safe technology.
Actions to date
On Feb. 26, District Court Judge Richard Sterns denied Strahan’s motion for a temporary restraining order against Holmes to prevent him from fishing in right whale critical habitat.
According to Bill Adler, the MLA delegates were scheduled to vote during the week of March 19 on whether to use the association’s legal defense fund to pay the cost of defending Holmes in court.
In the meantime, Holmes is trying not to let the situation disrupt his work and family life, but it’s not easy.
“I’m a third generation fisherman, and this had me contemplating getting out of it, but I’m not,” Holmes said. “We don’t get rich doing this but we do it because we love it.”
He added that he wanted to send a message to all lobstermen, especially those in Maine.
“This is not just about Massachusetts lobstermen. It’s Area 1. We fish by the same rules,” Holmes said. “It’s not just about one fisherman. If I lose, it will affect the whole industry.”
Lorelei Stevens
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