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Maine Right Whale Court Case on Hold Until May

On November 16, 2020, Judge Lance Walker ordered a temporary stay in the lawsuit led by Max Strahan, aka Man Against Xtinction, in September 2019 in U.S. District court in Bangor. Strahan had brought suit against the Maine Department of Marine Resources (DMR) and National Marine Fisheries Service (NMFS) for authorizing the use of vertical lines in Maine’s state and federal lobster and gillnet fisheries. The Maine Lobstermen’s Association (MLA) was granted intervenor status in the case, Man Against Xtinction v. Commissioner of Maine Department of Resources and Assistant Administrator of National Marine Fisheries Servic,e in July 2020.

Judge Walker’s order for a temporary stay means that this case has been put on hold pending the final outcome of the court case before Judge Boasberg in U.S. District court in Washington, D.C. (the Ross case).

Judge Walker writes, “The Ross case is at the remedy stage, whereas this case has not yet emerged from the pleading stage. Any injunctive relief and/or further administrative action that arises as a result of the Ross litigation will have implications for the Maine lobster fishery, which is operating pursuant to the same set of North Atlantic fisheries rules under review in Ross. It is not apparent to me that anything will be gained through this action in the meantime, given Mr. Strahan’s past approach to the conduct of this case, which has involved filings designed predominantly to ridicule and insult his adversaries while proclaiming his own grandiosity.”

Judge Walker has ordered NMFS and DMR to provide an update to the court summarizing the status reports required in Judge Boasberg’s case on or before May 31, 2021, the deadline established by Judge Boasberg for NMFS to issue a final Biological Opinion, implement new whale rules and issue a valid incidental take statement consistent with the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). Walker writes, “Following review of the status report, the Court will determine the future course of proceedings .”

Judge Walker’s stay will allow the Take Reduction Team stakeholder process and public comment on proposed new whale rules to proceed without the threat of inconsistent legal rulings sought by Strahan.

Strahan's suit to remove vertical lines from the water in order to protect right whales has been put on temporary hold. Photo courtesy of CBC.

As an intervenor in the Maine case, MLA’s aim was to ensure a vigorous legal response to Strahan’s lawsuit, which could have resulted in an adverse decision similar to the outcome of a nearly identical case filed by Strahan in Massachusetts. In April 2020, Judge Indira Talwani of the federal district court of Massachusetts concluded that the use of vertical buoy lines by Massachusetts lobstermen and gillnetters violated the ESA because this gear was likely to continue to harm right whales. The Judge did not shut down the fishery, but instead directed the Massachusetts fishery to obtain an Incidental Take Permit within 90 days for the fishery to continue to operate.

In October 2020, Judge Talwani once again denied Strahan’s request for an injunction that would have shut down lobster and gillnet fishing in Massachusetts until a trial takes place. However, the judge was displeased that Massachusetts had not complied with her order to apply for an ESA Incidental Take Permit, stating “I don’t like having an order out there being disobeyed.” She ordered the parties to suggest a trial date and required the state to report back to her on October 15 regarding its progress in applying for the Incidental Take Permit, with a progress report every 30 days. On November 13, the Massachusetts Division of Marine Fisheries announced two public hearings to solicit feedback on new whale protections in state waters, including a statewide lobster fishery closure from February 1 through April 30, capping the diameter of vertical lines at 3/8” and requiring that all vertical lines break at 1,700 pounds, amongst other measures.

Back in Maine, Judge Walker’s order to stay the case until the end of May 2021 followed an intense flurry of legal skirmishes initiated by Strahan. In his November ruling,

Judge Walker writes, “Plaintiff’s approach to this litigation is perplexing. As I wrote in a recent order denying a “scattershot” of unproductive motions filed by Plaintiff, it is Plaintiff’s approach to litigation rather than this Court’s administration of the case that explains why the docket in this matter now contains 135 entries even as Plaintiff continues to announce plans to amend, and now partially dismiss, his pleadings.”

In August, the Judge issued an order denying Strahan’s motion for interim injunctive relief which would have barred the licensing of the Maine lobster and gillnet fisheries until the state obtained an Incidental Take Permit. The “scattershot” motions filed by Strahan in the Maine case included an appeal by Strahan to the United States Court of Appeals for the First Circuit to reconsider Judge Walker’s denial of Strahan’s request that the court issue a preliminary injunction against permitting vertical buoy lines in Maine lobster and gillnet fisheries. However, Strahan failed to respond to the appellate court’s request for a brief on why the appeal court would have jurisdiction over the case, and the appeal was dismissed on October 29. The last trailing appeal from Strahan’s barrage of filings is now subject to a similar order stating that if he fails to file a brief by December 4, the remaining appeal will likewise be dismissed.

The dust has settled in the Maine case; it will remain on hold until the Boasberg case is resolved at the end of May. However, it appears that the judge in Maine is losing patience with Strahan. In his November ruling,

Judge Walker writes of Strahan’s conduct, “a cynical person might infer that he filed this action for no other reason than to distract, harass, and annoy the Defendants, who are at present defending (or are intervenors in) another action in the District of Columbia that involves the very same concerns raised in this action by Mr. Strahan.”

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