Fishermen File Lawsuit to Stop Wind Farm Construction in Nantucket Sound

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(Washington, D.C.)  July 2, 2010 - Martha’s Vineyard/ Duke’s County Fishermen’s Association (MV/DCFA) and fisherman Jonathan Mayhew are suing Secretary of Interior Ken Salazar and the Interior Department’s Bureau of Ocean Energy Management, Regulation and Enforcement (BOE) (formerly known as the Minerals Management Service), to stop construction of the Cape Wind Energy Project.  The 130 turbine wind generators would spread over 25 square miles on Horseshoe Shoal in the Nantucket Sound.  The complaint was filed on June 25, 2010 in the U.S. District Court for the District of Columbia.

MV/DCFA is a group of small-scale commercial fishing operators, most of whom are home-ported on Martha’s Vineyard.  The Duke’s County (MA) Commission established MV/DCFA in 2009 to provide a more formal voice for the Vineyard’s commercial fishermen.  For his part, Mr. Mayhew has earned his livelihood from the sea for more than 30 years, continuing the tradition of his ancestors, since their arrival in America on the Mayflower.  The Cape Wind Energy Project will effectively end all commercial fishing in the project area.  Horseshoe Shoal contains prime, historic fishing grounds for Vineyard fishermen.

Six public interest groups including the Alliance to Protect Nantucket Sound and Public Employees for Environmental Responsibility, filed two other federal lawsuits.  They assert, among other things, that the wind farm will kill endangered species, including the North Atlantic right whale, and migratory birds.  The Town of Barnstable, MA has also filed suit.

“We support sustainable, clean energy.  However, the planning of this entire project was never done with careful consideration of the community’s best interests,” said MV/DCFA President Warren Doty.

“Island fishermen are under a tremendous amount of regulatory pressure and are already struggling to make a living,” said David Frulla, an attorney at Kelley Drye & Warren LLP, who represents the fishermen.  ​“There are other solutions and alternatives that could better safeguard both the environment and the only way of life for many local residents.”

On April 28, 2010, the DOI and BOE issued a ​“record of decision” granting Cape Wind Associates, LLC an exclusive lease to develop the wind farm.  Under the law, however, the federal government must ensure the project is carried out safely and does not prevent reasonable uses of the leased area from continuing.  The Interior Department has determined that fishing is, in fact, a reasonable use of Horseshoe Shoal.  The U.S. Coast Guard has authority for ensuring the safety of uses in the project area.  After lengthy study,  the Coast Guard concluded that the wind farm could interfere with vessels’ radar, and will require fishermen to undertake a series of safety steps that will make their fishing activities prohibitively uneconomic.

Specifically, the Coast Guard will require fishing vessels to carry an extra crew member to monitor vessel radar and positioning.  Because Island fishermen are generally small operators, the requirement to carry (and compensate) an extra man creates a major financial burden.   The Coast Guard also will require establishment of traffic lanes and designated vessel routes within the wind farm, to help compensate for vessels’ compromised radar systems.  Of course, fish do not swim in traffic lanes along designated vessel routes, so this requirement will further severely cripple or obviate commercial fishing operations.  In addition, fishermen have explained that the wind mills will endanger the safety of fishermen whose nets get caught on wind turbine pilings and whose maneuverability within the turbine field would be dangerously limited.

The fishermen are requesting that the Court finds the record of decision was an abuse of discretion, in excess of authority and unlawful, and to permanently prevent the government from leasing the property to the wind mill developers.

Kelley Drye attorney David Frulla represents MV/DCFA and Jonathan Mayhew.

Founded in 1836, Kelley Drye & Warren LLP is a multidisciplinary law firm with five offices in the United States and an office in Brussels, Belgium.

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To view a copy of the complaint, click on the link below.