Strahan v. Roughead

RICHARD MAX STRAHAN, Plaintiff,

v.ADM. GARY ROUGHEAD, et al, Defendants.

C.A. No. 08-cv-10919-MLW

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Date: November 22, 2010

MEMORANDUM AND ORDER

WOLF, D.J.

I. INTRODUCTION

This case involves the Navy's obligations to protect certain federally-protected whale species (the "Federally Protected Whales")¹ under the Endangered Species Act (the "ESA"), 16 U.S.C. §1531 et seq. Plaintiff Richard Max Strahan ("Strahan") filed the complaint in this action pro se, ² seeking declaratory and injunctive relief against the defendants, Admiral Gary Roughead and Secretary Raymond E. Mabus³ of the United States Navy, and Robert M. Gates, the Secretary of the United States Department of Defense (collectively "the Navy"). Essentially, Strahan contends that by operating Navy vessels and conducting military training operations in United States coastal waters in a manner that kills and injures four federally protected whales species and adversely alters their federally-designated habitats, and by failing to consult with the National Marine Fisheries Service (the "NMFS") regarding the impact of its operations, the Navy is violating various provisions of the ESA.

The Navy moves for dismissal for lack of subject matter jurisdiction. Strahan moves for a preliminary injunction, as well as for orders compelling the Navy to comply with his requests for jurisdictional discovery, to lift the stay that currently exists, to compel the Navy to send him e-mail filings, and to schedule a conference. For the reasons described below, the stay in this case is being lifted; the Navy's motion to dismiss for lack of subject matter jurisdiction is being denied, without prejudice to renewal with regard to the question of mootness following further submissions and, if necessary, a hearing on the issue; Strahan's motion to compel jurisdictional discovery is being allowed in part and denied in part, also without prejudice to renewal should the Navy again move to dismiss on jurisdictional grounds; Strahan's motion for a preliminary injunction is being denied; and Strahan's motion to compel e-mail filings is being denied. Strahan's motions to schedule a conference are being allowed.

II. FACTUAL AND STATUTORY BACKGROUND

A. Factual Background

To the extent that the Navy has presented a facial challenge to the court's subject matter jurisdiction, the court must rely on the facts alleged in the complaint. See Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir. 2007). To the extent that the Navy has presented a factual challenge, the court must decide if material facts are in dispute. Id. Except where otherwise indicated, the following facts are derived from Strahan's complaint.

Strahan, a conservation biologist and the Chief Science Officer of Whale Safe USA, an "environmental movement that seeks to implement conservation plans for endangered species of wildlife," is "an avid whale watcher in the New England area" who lives most of the year in Boston, Massachusetts, with a business address in San Francisco, California. Complaint at 4-5. In his Complaint, Strahan alleges that the Navy, through the operation of its vessels and the deployment of explosive and non-explosive ordnance during training operations, routinely causes harm to Federally Protected Whales, each of which is a "resident species of the U.S. coastline, "⁴ and to their federally-designated habitats, thereby "imped[ing] their critical life activities." Complaint at 7, 11-12.

Strahan particularly emphasizes the harm to Northern Right Whales, "the most endangered species of whale in the world," which has "been in continuous decline for at least the last three decades." Complaint at 6. The principal way in which humans contribute to Northern Right Whale mortality is through "ship strikes and entanglement in commercial fishing gear." Id. Consequently, the remaining population of the Northern Right Whale in the Atlantic Ocean is in the low 200s. Complaint at 7.

In support of his allegations regarding the harm that Naval operations cause to Federally Protected Whales, Strahan notes several instances in which the Navy has allegedly killed whales:

1. Five dead Northern Right Whales were discovered off the coast of Florida in January and February, 1996, "just outside of the area that the Navy concurrently conducting [sic] military training exercises with live ordinance [sic]." Complaint at 9. This area bordered and included area listed pursuant to the ESA as critical habitat for the Northern Right Whale. The whales had injuries caused by being in the vicinity of detonating explosives. Id.

2. On June 10, 2002, the NMFS discovered the "headless carcass" of a Northern Right Whale calf "just to the north" of the area designated as the Northern Right Whale's critical habitat. Id. The Navy had been conducting bombing exercises approximately 60 miles northeast of Cape Cod, Massachusetts and 50 miles north of the whales' critical habitat. Id.

3. On November 17, 2004, the Navy ship U.S.S. Iwo Jima allegedly struck and killed a pregnant Northern Right Whale ten miles outside the entrance to the Chesapeake Bay off the Delaware coastline. Id. at 8. The Navy did not report the whale's death until November 24, 2005, when the whale carcass washed up in North Carolina. Id. A necropsy confirmed that the whale had been pregnant and that it had been killed by ship strike. Id.

4. In 2005, a Navy training operation resulted in the death of a Northern Right Whale off of Monomoy Island in Massachusetts. Id. at 3.

By causing such deaths, Strahan alleges, the Navy "has destroyed the ability of the Northern Right Whale to recover from its endangered status on its own." Id. at 9. He notes that the NMFS has already determined, after consultation with the U.S. Coast Guard, that "a single killing or serious injuring of any Northern Right Whale would jeopardize the continued survival of this species." Id.

Strahan asserts that despite the danger that its operations pose to the survival of the Northern Right Whale and the other Federally Protected Whales mentioned in the Complaint, the Navy has not developed a conservation plan to prevent harm to Federally Protected Whales; has not entered into any ESA consultation with NMFS on this issue; and has not obtained an "incidental take" statement from NMFS authorizing incidental, but not purposeful, Whale "takings." Id. at 10, 13-14. Strahan further alleges that the NMFS has never reviewed the impact of Naval operations on Federally Protected Whales, nor has it directed the Navy to enter into ESA consultation regarding this impact. Id. at 7-8, 10.

B. Statutory Framework

1. Section 7 of the ESA

Section 7(a)(2) of the ESA, 16 U.S.C. §1536(a)(2), "directs federal agencies to insure that agency action is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." Water Keeper Alliance v. United States Dep't of Defense, 271 F.3d 21, 25 (1st Cir. 2001) (internal quotation marks omitted). "This substantive requirement is backed up by a scheme of procedural requirements that set up a consultation process between the agency (in this case the Navy) and the [NMFS]... to determine whether endangered species or critical habitat are jeopardized by the proposed agency action and whether this adverse impact may be avoided or minimized." Id.; see ESA §7; 16 U.S.C. §1536.

To determine the possible effects of its actions, the agency (the Navy) may consult with the relevant Service (the NMFS) through informal consultation, a term that "simply describes discussions and correspondence between the [NMFS] and the agency designed to assist the agency in determining whether its proposed action is likely to impact listed species or critical habitat." Id.; see 50 C.F.R. §402.13. "If, at the conclusion of the informal consultation, the [NMFS] issue[s] [a] written concurrence[ ] that a proposed action is not likely to adversely affect any listed species or critical habitat, the agency may proceed with the action without further consultation...." Id. (internal quotation marks omitted); see 50 C.F.R. §402.14(b)(1).

However, where the informal consultation does not resolve the issue, the agency must embark on formal consultation. See id. at 26. "[F]ormal consultation culminates in the [NMFS's] issuance of [a] biological opinion[ ] advising the agency 'whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat, ' and if so, whether 'reasonable and prudent alternatives' exist to allow the agency to comply with the ESA." Id. (quoting 50 C.F.R. §402.14(h)). "If the [NMFS] conclude[s] that the action, or the implementation of any reasonable and prudent alternatives, comply with the ESA, the [NMFS] must also issue an 'incidental take statement' that specifies the amount or extent of the authorized taking of the species." Id. (quoting ESA §7(b)(4)).

2. Section 9 of the ESA

The ESA prohibits any person, a term that includes "any officer, employee, agent, department, or instrumentality of the Federal Government," from "taking" a listed species. ESA §§3(13) and 9(a)(1); 16 U.S.C. §§1532(13) and 1538(a)(1)(B). The ESA defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." ESA §3(19); 16 U.S.C. §1532 (19). "'Take' is defined...in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' fish or wildlife." S. Rep. No. 93-307, at 7 (1973); see also Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 703-04 (1995) (citing Congressional reports demonstrating that take is to be defined broadly); Strahan v. Coxe, 127 F.3d 155, 162 (1st Cir. 1997). "'Harass' is further defined by regulations as an...