February 19, 2009

reasonableness prevails; court refuses to enjoin lobster fisherman

By reasonableness prevails; court refuses to enjoin lobster fisherman

Such is the state of affairs with the Endangered Species Act that a lobster fisherman's entire livelihood was in jeopardy after a whale accidentally became entangled in his fishing gear, even though there was no proof that the entanglement actually harmed the whale. In this case, Strahan v. Holmes, the U.S. District Court for the District of Massachusetts ruled last month that "[t]he fact that the taking was accidental is irrelavant."  The decision is available here.

Despite the imposition of strict liability, the court's decision was reasonable enough that it allowed for a consideration of practical realities — a pleasant surprise given that courts often choose to hear only one side of the story.  Judge Gorton refused to enjoin Daniel Holmes from conducting his commercial lobster fishing operation because the plaintiff had not brought forth enough evidence to prove that there would be irreparable harm to whales in the future due to entanglement.  Also, importantly, the court noted the harm that Holmes would incur if an injunction were in fact issued:

The hardship that would be imposed upon Holmes by an injunction, i.e. being prevented from pursuing his livelihood, far outweighs the relatively remote possibility of harm from any future entanglements of whales in his fishing gear.

So we have an Endangered Species Act decision where the balance of hardships actually favored the human!  This case remains one to watch, however, as the plaintiff has filed a notice of appeal, available here.

What to read next