On December 26, 2012, in Strahan v. Roughead (pdf), the United States District Court for the District of Massachusetts denied a motion brought by federal defendants to dismiss as moot plaintiffs’ claims that the Navy is operating vessels in a manner that takes listed whales in violation of section 9 of the Endangered Species Act (ESA) and failing to consult with the National Marine Fisheries Service (NMFS) regarding the impacts of such operations in violation of section 7 of the ESA. The pro se plaintiff is alleging that the Navy, “through the operation of its vessels and its military training operations,” routinely harms the blue whale (Balaenoptera musculus), the fin whale (Balaenoptera physalus), the humpback whale (Megaptera novaeangliae), and the North Atlantic right whale (Eubalaena glacialis) along the United States Atlantic coast.

The Navy moved the court to dismiss the action as moot, arguing that it consulted with NMFS and obtained incidental take statements that cover the activities challenged by plaintiff in the complaint. In denying the motion, the court held that plaintiff’s complaint “contains factual allegations asserting, in essence, that the Navy is not acting in compliance with the terms of its incidental take statements.” The court noted that while the incidental take statement can shield an action agency or applicant from liability, that is only the case if the action agency or applicant is complying with the terms and conditions of the incidental take statement. The court also held that none of the Navy's incidental take statements authorize takes stemming from ship strikes or vessel traffic, which are alleged to occur in the complaint. The court then noted that such allegations, if proven, would require reinitiation of consultation under section 7 and deprive the Navy of immunity from section 9 liability.