ELR Citation: ELR 20254
No(s). 95-10927-DPW (D. Mass. Sep 24, 1996)

The court holds that Massachusetts and state agencies violated the Endangered Species Act (ESA) by licensing commercial fishers to use gillnets and lobster gear in state waters that are critical habitat to the endangered northern right whale. The court first dismisses for lack of jurisdiction plaintiff individual's claims under the Marine Mammal Protection Act (MMPA), because the MMPA does not have a citizen-suit provision and the Administrative Procedure Act does not apply to state officials. The court next holds that plaintiff satisfied the ESA's requirement that he give notice to the Secretary of Commerce before bringing suit. The best-evidence rule does not require the court to strike plaintiff's affidavit stating that he sent a notice letter to the National Marine Fisheries Service (NMFS) in Maryland even though he only submitted a copy of the letter to the court, because the original is not available to him and NMFS is not within the jurisdiction of the court. Absent a defense challenge on the issue of whether notice to NMFS qualifies as notice to the Secretary, the court assumes that plaintiff sent notice to the right office. The court next holds that plaintiff has standing to bring an ESA citizen suit. He has provided sufficient evidence to show that he has suffered and will continue to suffer an injury-in-fact from harm to endangered whales in Massachusetts waters. The court takes judicial notice of the fact that plaintiff testified under oath in another case that he regularly observes whales in Massachusetts waters, and thus does not require the individual to submit an affidavit to that effect. Further, the court finds that plaintiff has a cognizable interest in protecting endangered whales from death and injury in Massachusetts waters. The court holds that to the extent that plaintiff challenges the operations of commercial fishing and whale-watching vessels, he has shown a causal connection between the injury he has suffered and the actions of the defendants in issuing fishing licenses. And the court holds that a favorable decision would redress plaintiff's injury.

The court next holds that the Tenth Amendment to the U.S. Constitution does not bar plaintiff's suit for injunctive relief. The ESA exercises the federal preemption option without seeking to control the state legislative or regulatory process, and there can be no suggestion that the Act commandeers the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program. The court also holds that the Eleventh Amendment to the U.S. Constitution does not bar the ESA claims. Plaintiff seeks declaratory and injunctive relief rather than money damages payable from the public fisc, and even if the relief sought would have an incidental effect on state revenues, the fiscal consequences will be the necessary result of compliance with decrees the court might issue that by their terms would be prospective in nature. Thus, this action falls within the exception to the Eleventh Amendment bar provided by the doctrine announced in Ex Parte Young, 209 U.S. 123 (1908).

Turning to the merits of plaintiff's claim that Massachusetts has taken endangered whales in violation of ESA §9, the court holds that there is sufficient evidence to support plaintiff's factual allegations that endangered whales have been taken through entanglement in fishing gear permitted by defendants. The record indicates that the entanglement of endangered whale species in fishing gear in Massachusetts waters causes injury or death to those species, and that lobster-pot and gillnet-fishing gear pose a threat of harm to individual right whales and a potential threat to the recovery of the species. That Massachusetts' permitting of commercial fishing gear is only an indirect cause of whale entanglement is irrelevant. The scientific evidence in the case meets the First Circuit's standard that a taking requires a showing that the alleged activity actually has harmed or will harm the species. And plaintiff has presented sufficient evidence that the defendants know or should know that fishing gear injure or kill endangered whales. The court next holds that plaintiff has sufficiently stated a claim that defendants' permitting of fixed fishing gear results in a harmful taking of endangered whales through the modification of their habitat. The court next grants defendants' motion for summary judgment on plaintiff's claim that defendants take whales by granting permits allowing some whale-watching vessels to approach them at distances of less than 500 yards. There is no basis to issue injunctive relief to prevent defendants from issuing such permits, because plaintiff has not shown a likelihood that they will do so. Further, plaintiff has made no showing that whales are disturbed, injured, or otherwise taken by approaches at 500 yards. Finally, the court orders defendants to: apply for an incidental take permit from NMFS; apply for an MMPA permit for northern right whales; develop and prepare a proposal to restrict, modify, or eliminate the use of fixed fishing gear in state waters listed as critical habitat for northern right whales; and convene a working group to enter into discussions with plaintiff and other interested parties regarding modifications of fixed fishing gear and other measures to minimize actual harm to northern right whales.

Counsel for Plaintiff
Not available at press time.

Counsel for Defendant
Salvatore Giorlandino, Ass't Attorney General
Attorney General's Office
One Ashburton Pl., Boston MA 02108
(617) 727-2200