‘Man Against Xtinction’ in Final Legal Effort to Protect Whales

Jan. 26, 2021, 11:31 AM

Richard “Max” Strahan fought to save North Atlantic right whales for decades. But his latest legal scrap against Massachusetts over a practice used by generations of lobster fishermen may be his last.

Strahan seeks a court order to prevent the state from licensing vertical buoy ropes and to make Massachusetts revoke all existing licenses. The ropes connect traps and pots under water to buoys on the surface so lobstermen can more easily find their catch.

The ropes hang down “like the tendrils of jellyfish,” according to Strahan. They’re rough, like sandpaper, so fishermen can grip them even if they’re covered in slime from algae, he said.

But whales are “particularly susceptible” to being entangled in the gear because “their habitat and feeding areas overlap with fisheries,” according to the National Marine Fisheries Service, also known as NOAA Fisheries.

Entangled whales can suffer serious injury, the agency says, and even drown if the traps are weighted.

Strahan said his urgency to protect right whales dates to 1970, when they were listed as endangered under the precursor to the Endangered Species Act. He describes himself as having a “major case of biophilia.”

“I just love life,” he said in an interview with Bloomberg Law. Strahan’s middle name is Maximus, and he goes by Max—partially as a backronym to the nickname “Man Against Xtinction.”

Decades of Solo Fights

Strahan, who was also involved in the effort to get northern spotted owls listed under the ESA, declined to give much personal information or details about his early life, but reports from the Boston Globe and Amherst Bulletin indicate he is in his late 60s or early 70s.

He majored in liberal studies at the University of New Hampshire, where he wrote a masters thesis on mass extinction titled “Goodbye and Thanks for all the Fish"—a reference to The Hitchhiker’s Guide to the Galaxy series.

Strahan distinctly remembers his first case, Strahan v. Coxe, which he frequently cites.

The U.S. District Court for the District of Massachusetts said in that 1996 opinion that gillnets and lobster gear have harmed endangered whales “and are likely to continue doing so.”

The court ordered state officials to apply for an incidental take permit with the NOAA Fisheries. It also ordered the state to convene an Endangered Whale Working Group to discuss measures to minimize harm to Northern right whales.

Strahan filed many lawsuits to protect whales since then—they’ve mostly been pro se, and they’ve garnered mixed success.

His lawsuit challenging the U.S. Coast Guard’s operations was rejected by the U.S. Court of Appeals for the First Circuit as lacking in merit or insufficiently developed. Another complaint filed against the New England Aquarium challenging whale watching vessels was dismissed by the same court for a failure to meet filing deadlines.

Counsel Joins the Effort

For his latest suit to ban buoy ropes, he has help from Hagens Berman Sobol Shapiro LLP, a prominent plaintiffs’ firm, and attorney Adam Keats of San Francisco—support that he says is the “best thing that’s ever happened to right whales.”

“If I can win in this lawsuit, which only means one thing, enforcing the law, stopping a crime, then maybe they’ll have a chance,” Strahan said.

Though Hagens Berman only recently joined Strahan’s mission, Keats has known Strahan for more than 20 years, advising him and participating in settlement hearings. He told Bloomberg Law fighting for endangered species is Strahan’s calling.

“I’ve been fired by him too,” Keats said. “Our collaboration has been able to withstand those hiccups.”

He kept up with what Strahan was doing as an attorney for various environmental groups including the Center for Biological Diversity and Center for Food Safety. He since launched his own practice as a water lawyer.

Keats said Strahan would reach a certain level of success in his legal battles but fail to “get it across the line” in his effort to stop whale entanglements under the ESA.

That changed when Judge Indira Talwani acknowledged in April whales are likely to get entangled in the future, and the species may go extinct if the use of buoy ropes isn’t stopped.

“Both of us looked at each other and said he could achieve more being represented by an attorney than by being pro se in this case,” Keats said. That’s when Hagens Berman came aboard.

Fewer Than 400

North Atlantic right whales have experienced an unusual mortality event since 2017, with the leading causes of death being vessel strikes and entanglement in fishing gear, according to NOAA Fisheries. Of the 11 whale deaths in the U.S. reported between 2017 and 2020, six were linked to entanglements, two to vessel strikes, and three were undetermined or are still being investigated.

Fewer than 400 right whales remain, according to the agency, and only 22 births were observed in the past four calving seasons.

The scientific consensus is the end of the whale “is visible on the horizon,” according to Strahan’s pending motion for a preliminary injunction in the District of Massachusetts.

The NOAA Fisheries data and recent sightings of entangled whales prompted his latest effort to block Massachusetts from licensing vertical buoy ropes.

The motion is opposed by the Massachusetts Lobstermen’s Survival Fund, which says its members will be “put out of business in state waters” if Strahan succeeds.

Lobster fishing, as well as other businesses in the seafood industry, have suffered the economic effects of the Covid-19 pandemic, according to Bloomberg Government. Restaurant closures, shipping interruptions, and infection protocols at plants have all disrupted the business, according to another Bloomberg report.

Strahan said his gripe isn’t with the fishermen themselves. They’re hardworking Americans who are in the water risking their lives for their work, he said.

But Keats said getting vertical buoy ropes out of Massachusetts waters is “the one thing that would save the species.”

“I don’t want to blame individual lobstermen,” Keats said. “I want to blame all of us, including me for walking away from this fight 20 years ago.”

The attorney said they are at a turning point in the case, and he believes the judge’s hands are tied and that she must end vertical buoy fishing in Massachusetts.

The ESA itself doesn’t allow the balancing of the interests of the plaintiff to those of the affected parties, according to Keats.

But if the court finds it can weigh the harm to fisherman against the survival of the whales, then they could encounter trouble using the ESA going forward, Keats said.

“We either save the whale or we wreck the Endangered Species Act,” he said.

Wolves Up Next

Strahan is working on a new venture to support “whale-safe fishing.” Strahan, Keats, and two others registered a nonprofit in New Hampshire in July 2020 to push for a type of fishing that he says doesn’t involve ropes at all.

As for other endangered species, Strahan said he plans to try to bring back to New England gray wolves. They were removed from the ESA in October 2020, prompting threats of lawsuits from environmental groups.

The animals symbolize wilderness, according to Strahan, just as whales do for coastlines.

It’s unclear when Talwani will issue a ruling on Strahan’s injunction request.

In the meantime, the Massachusetts Division of Marine Fisheries continues to work on an incidental take permit application, according to a status report filed Jan. 14.

The state is also reviewing proposed regulations by the federal government calling for the widespread use of weak rope in Massachusetts, state specific gear marking, and seasonal closures.

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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