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Strahan v. Linnon

ELR Citation: 27 ELR 21349
Nos. 94-11128-DPW, 966 F. Supp. 111/(D. Mass., 05/20/1997)

The court holds that it will consider additional extra-record evidence offered by a whale enthusiast in a summary judgment action against the U.S. Coast Guard and the National Marine Fisheries Service (NMFS) under exceptions to the Administrative Procedure Act (APA). The court first holds that it will not consider testimony concerning the right whale population because it is not probative of the issues in the action and does not reveal a perspective not already in the record. The court next holds that testimony concerning the precise number of right whales will not be considered, because it is not relevant and does not influence the analysis in the case. The court then holds that testimony concerning NMFS recovery plans for federally protected whales other than right and humpback whales and the data used to compile NMFS' 1995 and 1996 biological opinions will be considered in evaluating the sufficiency of the data in the biological opinions, but the testimony concerning the timing of recovery plans is inadmissible. The court next holds that testimony concerning a photo identification system used by NMFS falls within the exception that the Coast Guard or NMFS should have considered. Next, the court holds that deposition testimony concerning a Coast Guard cutter collision with a humpback whale is not helpful to the court's analysis and does not fit within any recognized exception to the APA. However, the court holds that the testimony of a Coast Guard cutter commander concerning the appropriate speed limit in known right whale habitat will be considered. It suggests that NMFS should have consulted with employees before issuing a speed recommendation. The court next holds that a separate Coast Guard commander's testimony on a wide variety of subjects will not be excluded. It is relevant to the evaluation of the Coast Guard's adoption of a reasonable and prudent alternative to the 1996 biological opinion. The court then holds that testimony by the NMFS' protected species coordinator concerning the implementation of the right whale recovery plan is relevant and will be considered. The administrative record lacks similar testimony and the testimony aids the understanding of technical aspects of Coast Guard and NMFS activities. The court next holds that an NMFS large whale take reduction team member's testimony that the team's recommendation was not intended to be complete will not be considered. The testimony is repetitive and can be found in the administrative record. The court then holds that the testimony of the head of the NMFS Office of Protected Resources concerning the finality of the agency action under the APA is redundant, but testimony demonstrating that the defendants have implemented the humpback recovery plan is relevant. The court further holds that new testimony by a conservation biologist concerning the scientific and commercial data used by NMFS falls within two exceptions to the APA. The court rejects defendants argument that the testimony was prepared in anticipation of litigation. The testimony may show factors that NMFS should have considered but did not, and it helps explain technical and scientific procedures. The court then holds that a report stating that the right whale population is declining is immaterial and is therefore excluded. Last, the court bars testimony addressing whether a whale hit by a Coast Guard cutter was a humpback whale. No genuine dispute exists over the issue.

Counsel for Plaintiff
Richard D. Belin
Foley, Hoag & Eliot
One Post Office Sq., Boston MA 02109
(617) 832-1000

Counsel for Defendants
Elinor Colbourn
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000