07/13/22 | Case Update
As of July 13, 2022, the U.S. District Court for the District of Maine reinstated a ban on lobster fishing gear in a nearly 1,000-square-mile area off New England in an effort to protect endangered North Atlantic right whales.
The news follows a ruling issued by Judge James E. Boasberg of the U.S. District Court for the District of Columbia on July 8, 2022 siding with protection efforts of the whales. Judge Boasberg’s decision stated that the final rule issued in 2021 by National Marine NOAA Fisheries Service (NMFS) violated the Marine Mammal Protection Act and the Endangered Species Act. The ruling invalidated approvals for the lobster fishery, and Judge Boasberg said NMFS had issued an invalid biological opinion and incidental take statement for the fishery since the government was unable to show fishing in the area wouldn't cause an unsustainable number of deaths of the North Atlantic right whale.
"The Service finds itself caught between the devil and the deep blue sea given that the low numbers of right whales mean that almost any action will have more than a 'negligible impact' on the species," the judge said in part.
Hagens Berman is litigating claims against the Commonwealth of Massachusetts for violating the Endangered Species Act by failing to adequately protect the North Atlantic right whale, a critically endangered species frequently found off its coastline.
VERTICAL BUOY ROPES KILL WHALES
The coast of Massachusetts is a frequent feeding ground for some of the last North Atlantic right whales, one of the most endangered whales in the world and a species at risk of imminent extinction.
Massachusetts has long licensed Vertical Buoy Ropes (VBRs) for use in lobster pot or gillnet fishing. But VBRs are the leading cause of death for North Atlantic right whales: These ropes ensnare the whales, constricting their ability to eat, give birth, and swim. Even when the whales don’t die, the entanglements can seriously injure, physically and mentally, the whales, threatening the ongoing viability of their species.
In describing the plight of right whales that become entangled with VBRs, the Cape Cod Times recently wrote, “Imagine you are swimming with a rope tied to your ankle and it’s connected to one of those heavy candles in a bucket. To stay afloat, you have to keep swimming, but your kicking motion causes the rope to cut deeper and deeper into your ankle.”
MASSACHUSETTS HAS FAILED TO PROTECT ENDANGERED WHALES
In an order dated April 30, 2020, Judge Indira Talwani of the United States District Court for the District of Massachusetts found that the “Plaintiff is likely to prevail on his claim that the deployment of VBRs in Massachusetts waters has violated and will continue to violate the Endangered Species Act.”
She also stated that “the continued permitting of VBRs by Defendants is likely to result in harms that cannot later be cured.” She then ordered the state of Massachusetts to “promptly seek an Incidental Take Permit pursuant to Section 10 of the Endangered Species Act.” (According to Judge Talwani’s order, “Congress has set forth a permitting process through appropriate expert agencies that allows for the incidental taking of endangered species if the agency is satisfied that such incidental takes will, among other things, not threaten the survival of the species.”)
However, Hagens Berman’s Nov. 12, 2020, memorandum in support of a motion for preliminary relief states that not only did Massachusetts fail to obtain an incidental take permit in the ensuing months, but it did not even apply for one, instead seeking a stay of the litigation. To this end, during a hearing on Oct. 8, 2020, the court denied the state’s request for a stay and set a trial date of June 7, 2021.
The four weeks following the Oct. 8 hearing brought a string of tragic incidents involving right whales and VBRs, as well as a report which found “increased use of southern New England waters by right whales” due to climate change. And on Oct. 26, 2020, the National Marine Fisheries Service issued a report that estimated just 366 North Atlantic right whales – including just 94 breeding females – were still alive in January 2019, an 11% decline from the year before. (As Hagens Berman’s memorandum states, their population has almost certainly lowered due to new whale deaths since January 2019.)
LAWSUIT SEEKS RELIEF FOR ENDANGERED WHALES
Hagens Berman is seeking an injunction that bars Massachusetts from issuing new Vertical Buoy Rope licenses and requires the state to revoke all existing VBR licenses until it is either granted an Incidental Take Permit that isn’t subject to appeal or the case comes to a conclusion. The United States Supreme Court has ruled that when a violation of the Endangered Species Act cannot be curtailed without putting a stop the conduct leading to the violation, then an injunction should be issued “whatever the cost.”
If an injunction is not issued and VBR licenses continue to be granted unabated, right whales will go extinct.
TOP ENVIRONMENTAL LAW FIRM
Hagens Berman believes that protecting and repairing our environment from damage caused by irresponsible and illegal practices is some of the most rewarding work a law firm can do. Our firm has established an internationally recognized environmental litigation practice.
Notable cases include representing homeowners exposed to arsenic and lead pollutants from Asarco smelters, representing clients affected by the Exxon Valdez oil spill, stopping Dole from degrading drinking water in Guatemala and fighting against a surge of dirty diesel cars illegally put on highways by the nation’s largest automakers. Furthermore, Hagens Berman represents a municipality and county in lawsuits filed against BP, Chevron Corp., Exxon Mobil Corp., Royal Dutch Shell PLC and ConocoPhillips alleging that the Big Oil giants are responsible for the costs of protecting themselves from global warming-induced sea level rise.
CASE TIMELINE
Hagens Berman filed a reply brief in further support of its motion for preliminary relief pending trial, addressing the state defendants’ misapplication of legal precedent on and incorrect statements about the procedure for analyzing alleged violations of the Endangered Species Act and reiterating the need for injunctive relief.
Hagens Berman requested that the court order Massachusetts to stop issuing new Vertical Buoy Rope licenses and revoke all existing VBR licenses until the state is either granted an Incidental Take Permit that isn’t subject to appeal or a decision is reached on the merits of the case. Download the Memorandum in Support of Motion for Preliminary Relief »
Hagens Berman also filed a reply brief in further support of its motion for preliminary relief on Dec. 22, 2020. As Hagens Berman awaits a decision on this motion, it continues its steadfast effort to protect North Atlantic right whales by proceeding with depositions and document discovery to prepare for trial on June 7, 2021.
Hagens Berman filed a memorandum in support of preliminary relief pending trial asking the court to enjoin Massachusetts from licensing the use of Vertical Buoy Ropes and from failing to revoke all existing licenses.
A federal judge issued an order partially granting injunctive relief, allowing the plaintiff to renew his motion to stop Massachusetts from licensing fishing activities using Vertical Buoy Ropes if the state has not obtained an Incidental Take Permit within 90 days of the order.
