July 7, 2010

Lobster fisherman held hostage by Endangered Species Act litigation

By Lobster fisherman held hostage by Endangered Species Act litigation

Author: Brandon Middleton

Daniel Holmes is a commercial lobster fisherman who fishes in Cape Cod Bay and other waters off the coast of Massachusetts.  Holmes' fishing gear complies with state and federal regulations, and his equipment is known within the fishing industry to be "whale safe."

Lobster In the summer of 2006, Holmes set out his gear just north of Cape Cod in the Atlantic Ocean.  At some point on August 2, his gear accidentally became entangled with an endangered humpback whale. Fortunately, the whale was quickly disentangled from the gear and was able to swim away unharmed.

Four years later, however, Holmes remains subject to an Endangered Species Act lawsuit arising out of the incident, despite the accidental nature of the whale entanglement, and despite the fact that the accident caused no serious injuries.

The lawsuit was originally brought by Richard Max Strahan, a pro se litigant who describes himself as a "full time degree seeking student at the University of Massachusetts in Amherst."  Strahan asked a federal district court to stop Holmes's commercial fishing operations, and although common sense prevailed there, Strahan has since continued the litigation in the United States Court of Appeals for the First Circuit, seeking to prevent Holmes from pursuing his livelihood.

The case has sat in the First Circuit for 16 months without Strahan having yet made his opening argument as the appellant.  In most circumstances, it would be absurd to think that an appellant could take this long to file his opening brief.  But for whatever reason, the First Circuit has been extremely kind to Strahan and has granted him numerous extensions.  Strahan's brief is now due on August 2.

Meanwhile, Daniel Holmes has had to deal with four years of costly litigation, not to mention significant uncertainty over his livelihood.  Should Strahan get around to actually filing his brief, Pacific Legal Foundation will be supporting Holmes as an amicus curiae.  But whatever happens, this injustice is a reminder of the unforgiving nature and power of the Endangered Species Act.

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