Man Against Xtinction v. Comm'r of Me. Dep't of Marine Res., 1:19-cv-00406-LEW

478 F.Supp.3d 67

MAN AGAINST XTINCTION, Plaintiff,

v.COMMISSIONER OF MAINE DEPARTMENT OF MARINE RESOURCES; Assistant Administrator of National Marine Fisheries Service, Defendants,District 4 Lodge of the International Association of Machinists and Aerospace Workers, Local Lodge 207, f/k/a, Iamaw Maine Lobstering Union-Local 207, Maine Lobstermen's Association, Intervenor-Defendants.

1:19-cv-00406-LEW

United States District Court, D. Maine.

Signed August 10, 2020

Man Against Xtinction, Durham, NH, pro se.

Mark Randlett, Christopher C. Taub, Office of the Attorney General, Augusta, ME, for Defendant Commissioner of Maine Department of Marine Resources.

Frederick H. Turner, U.S. Department of Justice, Washington, DC, for Defendant Assistant Administrator of National Marine Fisheries Service.

ORDER ON PLAINTIFF'S MOTIONS FOR PRELIMINARY INJUNCTION

Lance E. Walker, UNITED STATES DISTRICT JUDGE

Plaintiff has two Motions for Preliminary Injunction pending, one against each Defendant. On May 15, 2020, Plaintiff filed a Motion for Preliminary Injunction against Defendant Commissioner of State of Maine's Department of Marine Resources (the "State Defendant"), asking the Court to prevent him "from further licensing any fishing gear utilizing [vertical buoy ropes]" in Maine waters. ECF No. 37 at 2.¹ Plaintiff also filed a Motion for Preliminary Injunction against Defendant Assistant Administrator of National Marine Fisheries Service (the "Federal Defendant"), seeking the same relief, but in the federally-regulated coastal fishery. ECF No. 54. For the reasons that follow, the Motions for Preliminary Injunction are DENIED.

BACKGROUND

I provide a brief summary of what remains of Plaintiff's claims from his original Complaint, as he has tacked back and forth once or twice. At the outset, the Plaintiff filed a Complaint seeking declaratory and injunctive relief under Sections 7 and 9 of the Endangered Species Act (Count I) and the Marine Mammal Protection Act (Count II). On May 4, 2020, I dismissed the Plaintiff's claims under the MMPA, and narrowed Count I to the plausible allegations that Defendants had violated ESA Sections 7 and 9 by licensing fishing activity that caused takes of the North Atlantic Right Whale, an endangered species. Subsequently, the Plaintiff disclaimed his ESA Section 7 allegations. For example, he described any suggestion that he asserts claims under Section 7 of the ESA as "insane and meritless." ECF No. 77 at 2; see also ECF No. 76 at 3 (calling the Federal Defendant's claim that the Plaintiff brings an ESA Section 7 claim "maliciously false.... I am not."); ECF No. 66 at 2 ("I am not bringing any ESA Section 7 claims against Oliver/NMFS.... I am not challenging any ESA Section biological opinion issued by Defendant Oliver/NMFS.... Count I of my original and amended complaint only brings claims against both state and federal defendant for engaging in ESA Section 9 prohibited conduct. It does not bring any ESA Section 7 claim against either [the] state or federal defendant."). What is left, then, is an ESA Section 9 claim that Defendants have caused the unlawful take of a North Atlantic Right Whale sometime after September 2013.²

Plaintiff alleges the Defendants caused this harm by licensing vertical buoy ropes (VBRs)³ in their jurisdictional waters, which in turn fatally entangled North Atlantic Right Whales. ECF No. 47 at 2, ECF No. 59 at 2. Both gillnet and lobsterpot fishermen use VBRs, though lobster pots make up the vast majority of buoy lines in Defendants’ regulated fisheries. ECF No. 58-11 at 2; see also Conservation Law Found. v. Ross , 422 F. Supp. 3d 12, 15 (D.D.C. 2019) (quoting Michael Asaro, Chief, Greater Atlantic Region, Marine Mammal and Sea Turtle Branch of NOAA Fisheries, as testifying that "gillnet gear is a minor contributor to the overall right whale entanglement risk ... because lobster fishing accounts for over 97% of the vertical lines on the east coast."). For example, Maine lobstermen fish about 3 million traps, New Hampshire lobstermen 71,000 traps, and Massachusetts lobstermen around 300,000 traps; there are between 50,000 and 80,000 traps in federal waters. In all, the three million licensed traps in Maine's fishery represent an estimated 87% of the U.S. Atlantic lobster fishery. ECF No. 58-11 at 3.

DISCUSSION

A. Preliminary Injunction Standard

Injunctive relief is "an extraordinary and drastic remedy that is never awarded as of right." Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc. , 645 F.3d 26, 32 (1st Cir. 2011) (citations and quotation marks omitted). "To grant a preliminary injunction, a district court must find the following four elements satisfied: (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm absent interim relief, (3) a balance of equities in the plaintiff's favor, and (4) service of the public interest." Arborjet, Inc. v. Rainbow Treecare Sci. Advancements, Inc. , 794 F.3d 168, 171 (1st Cir. 2015). As the party seeking injunctive relief, Plaintiff bears the burden of establishing that the factors weigh in his favor. Nat'l Org. for Marriage v. Daluz , 654 F.3d 115, 117, 119-20 (1st Cir. 2011).

"Likelihood of success is the main bearing wall of the four-factor framework." Ross-Simons of Warwick, Inc. v. Baccarat, Inc. , 102 F.3d 12, 16 (1st Cir. 1996). On this issue "the district court is required only to make an estimation of likelihood of success and ‘need not predict the eventual outcome on the merits with absolute assurance.’ "

Corp. Techs., Inc. v. Harnett , 731 F.3d 6, 10 (1st Cir. 2013) (quoting Ross–Simons , 102 F.3d at 16 ). The moving party's burden to show it is "likely to succeed" varies depending on the relevance of the remaining preliminary injunction factors. If the party seeking injunctive relief fails to make a persuasive showing of likelihood of success, then generally the court acts within its discretion if it denies relief without addressing the remaining factors. New Comm. Wireless Servs., Inc. v. SprintCom, Inc. , 287 F.3d 1, 9 (1st Cir. 2002). But the strength of the other three factors can lessen the movant's burden of showing "likelihood of success;" as other circuits to consider the issue have pointed out, "[h]ow strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff's claim on the merits can be while still supporting some preliminary relief." See, e.g., Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co. , 582 F.3d 721, 725 (7th Cir. 2009) (Easterbrook, C.J.). Ultimately, "trial courts have wide discretion in making judgments regarding the appropriateness of such relief." Francisco Sánchez v. Esso Standard Oil Co. , 572 F.3d 1, 14 (1st Cir. 2009).

Although I must evaluate each of the four considerations, the First Circuit has found that under the Endangered Species Act, the balance of the hardships and the public interest tip "heavily in favor of protected species." Strahan v. Coxe , 127 F.3d 155, 160 (1st Cir. 1997). But as with any preliminary injunction, the injunction shall only issue if plaintiff makes a clear showing that it is entitled to such relief. Winter v. Natural Res. Def. Council , Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Plaintiff does not seek a run-of-the-mill prohibitory preliminary injunction, either. He instead asks for mandatory preliminary injunctive relief, which requires affirmative action by the non-moving party in advance of trial (here, re-jiggering the regulation of the lobster fishery in Maine- and federally-regulated waters). "Because a mandatory preliminary injunction alters rather than preserves the status quo, it normally should be granted only in those circumstances when the exigencies of the situation demand such relief." Braintree Labs., Inc. v. Citigroup Glob. Markets Inc. , 622 F.3d 36, 40–41 (1st Cir. 2010) (internal citation omitted). Those exigencies are still measured according to the same four-factor test, as "[t]he focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo." Id.

B. Likelihood of Success

For Plaintiff to prevail, he must show he is likely to succeed in proving his Section 9 ESA claim against either the State or Federal Defendant. As explained above, Section 9 of the ESA prohibits the "taking" of an ESA listed species. 16 U.S.C. § 1538(a)(1). "The proper standard for establishing a taking under the ESA, far from being a numerical probability of harm, has been unequivocally defined as a showing of ‘actual harm.’ " Am. Bald Eagle v. Bhatti , 9 F.3d 163, 165 (1st Cir. 1993). In other words, "for there to be ‘harm’ under the ESA, there must be actual injury to the listed species." Id. at 166 (citing cases holding that injunctive relief is warranted "only where petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species"). At this stage, the Plaintiff bears the burden of showing actual harm. Id. at 167 n.5. To prevail on his Motions, therefore, Plaintiff must demonstrate (at the very least) a take in Maine or federal waters by a VBR deployed by a Maine- or federally-licensed lobsterman within the six-year limitations period.

Plaintiff's Motions fail to bring this requisite evidence to light. Even at this preliminary stage, prior to discovery, "the burdens at the preliminary injunction stage track the burdens at trial." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 429, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). In the ESA Section 9 context, to show he is likely to succeed this Plaintiff must be able to point to some evidence that VBR licensed by one of the Defendants has caused "actual injury to the listed species" in the fisheries at issue.⁴ Bhatti , 9 F.3d at 166. For one thing, the Plaintiff concedes that he does not have "sufficient...