UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2063
RICHARD MAX STRAHAN,
Plaintiff - Appellee,
v.
TRUDY COXE, SECRETARY OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENVIRONMENTAL AFFAIRS, ET AL.,
Defendants - Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Salvatore M. Giorlandino, Assistant Attorney General, with
whom Scott Harshbarger, Attorney General of Massachusetts, and
Douglas H. Wilkins, Assistant Attorney General, Chief, Government
Bureau, were on brief for appellant Commonwealth of
Massachusetts.
Alan Wilson for Conservation Law Foundation, Inc., amicus
curiae.
Richard Max Strahan pro se.
October 9, 1997
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TORRUELLA, Chief Judge. In April 1995, Richard Strahan
TORRUELLA, Chief Judge.
("Strahan") filed suit against Trudy Coxe, Secretary of the
Massachusetts Executive Office of Environmental Affairs, John
Phillips, Commissioner of the Massachusetts Department of
Fisheries, Wildlife, and Environmental Law Enforcement, and
Philip Coates, Director of the Massachusetts Division of Marine
Fisheries (together "defendants"), claiming that these
Massachusetts state officers were violating the federal
Endangered Species Act ("ESA"), 16 U.S.C. 1531 et seq., and the
Marine Mammals Protection Act ("MMPA"), 16 U.S.C. 1361 et seq.
Strahan sought a preliminary injunction ordering the Commonwealth
to revoke licenses and permits it had issued authorizing gillnet
and lobster pot fishing and barring the Commonwealth from issuing
such licenses and permits in the future unless it received
"incidental take" and "small take" permits from the National
Marine Fisheries Service ("NMFS") under the ESA and MMPA.
Defendants moved to dismiss Strahan's complaint and, in the
alternative, for summary judgment.
On September 24, 1996, the district court: (1) denied
defendants' motion for summary judgment on Strahan's ESA claims;
(2) dismissed Strahan's MMPA claims; and (3) granted summary
judgment on Strahan's ESA claims in Count IV of Strahan's amended
complaint. Strahan v. Coxe, 939 F. Supp. 963 (D. Mass. 1996).
In this ruling, the district court declined to grant the
preliminary injunctive measures sought by Strahan. Instead, the
court issued a preliminary injunction ordering defendants to: (1)
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"apply for an incidental take permit [under the ESA] from NMFS .
. . for Northern Right whales"; (2) "apply for a permit under the
[MMPA] for Northern Right whales"; (3) "develop and prepare a
proposal . . . to restrict, modify or eliminate the use of fixed-
fishing gear in coastal waters of Massachusetts listed as
critical habitat for Northern Right whales in order to minimize
the likelihood additional whales will actually be harmed by such
gear"; and (4) "convene an Endangered Whale Working Group and to
engage in substantive discussions with the Plaintiff [Strahan],
or his representative, as well as with other interested parties,
regarding modifications of fixed-fishing gear and other measures
to minimize harm to the Northern Right whales." Id. at 990-91.
Defendants appeal the district court's preliminary injunction
order. Plaintiff Strahan cross-appeals the district court's:
(1) refusal to grant him the precise injunctive relief sought;
(2) dismissal of his MMPA claims; (3) alleged limitation on his
right to discovery; and (4) alleged error in a factual ruling.
For the reasons stated herein, we vacate paragraph two of the
injunction, requiring defendants to apply for a permit under the
MMPA, and otherwise affirm the district court's opinion and order
of injunctive relief.
BACKGROUND
BACKGROUND
I. Status of the Northern Right whale
I. Status of the Northern Right whale
Strahan is an officer of GreenWorld, Inc., an
organization dedicated to the preservation and recovery of
endangered species. Strahan, 939 F. Supp. at 966 & n.6. Strahan
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brought suit on behalf of the Northern Right whale, listed as an
endangered species by the federal government. See 50 C.F.R.
222.23(a). Northern Right whales are the most endangered of
the large whales, Strahan, 939 F. Supp. at 968, presently
numbering around 300, 62 Fed. Reg. 39157, 39158 (1997).
Entanglement with commercial fishing gear has been recognized as
a major source of human-caused injury or death to the Northern
Right whale. Final Recovery Plan for the Northern Right Whale
(Eubalaena Glacialis), NMFS (December 1991)("Right Whale Recovery
Plan") at 24; see also Strahan, 939 F. Supp. at 972. Collision
with ships is also a significant cause of Northern Right whale
death. See Right Whale Recovery Plan at 10; Strahan, 939 F.
Supp. at 972.
The majority of Northern Right whales are present in
Massachusetts waters only during spring feeding. Strahan, 939 F.
Supp. at 968. The district court found, based on statements made
by defendants as well as on affidavits from three scientists,
that Northern Right whales have been entangled in fixed fishing
gear in Massachusetts coastal waters at least nine times. See
Strahan, 939 F. Supp. at 984 ("On May 15, 1983, a Right whale was
observed 'thrashing around' a location three miles east of
Manomet Point in Plymouth, MA because of its entanglement in
ropes attached to lobster buoys. . . . Right whales were also
found entangled in lobster and other fishing gear in
Massachusetts waters on June 16, 1978, May 13, 1982, October 14,
1985, May 15, 1983, August 29, 1986, August 7, 1993, November 17,
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1994, and August 17, 1995. At least one of these whales was not
expected to survive its injuries from the gear."). Moreover, a
Northern Right whale mortality was reported off Cape Cod,
Massachusetts in May 1996. 61 Fed. Reg. 41116, 41117 (Aug. 7,
1996).
The NMFS issued a final interim rule proposing to close
off entirely the critical habitat of the Northern Right whale and
to modify fishing practices to enhance the viability of the
Northern Right whale. Taking of Marine Mammals Incidental to
Commercial Fishing Operations; Atlantic Large Whale Take
Reduction Plan Regulations, 62 Fed. Reg. 39157, 39158-39159 (July
22, 1997). The report accompanying the proposed rule recognized
that entanglement with fishing gear is one of the leading causes
of the depletion of the Northern Right whale population and
indicated that more than half of the Northern Right whale
population bear scars indicating unobserved and unrecorded
earlier entanglement. Id. The report calls for a ban on gillnet
fishing and lobster pot fishing, the two manners of fishing at
issue in this case, during the Northern Right whales' high season
in the Cape Cod Bay Critical Habitat from January 1 to May 15 of
each year, and in the Great South Channel from April 1 to June
30, until modified fishing equipment is developed that will
diminish the risk of injury and death to the Northern Right
whale. Id. at 39159-39160.
II. Massachusetts' regulatory authority scheme
II. Massachusetts' regulatory authority scheme
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The Massachusetts Division of Marine Fisheries ("DMF")
is vested with broad authority to regulate fishing in
Massachusetts's coastal waters, Mass. Gen. L. c. 130, which
extend three nautical miles from the shoreline, see Strahan, 939
F. Supp. at 974. Nearly all commercial fishing vessels must
receive a permit from DMF in order to take fish, including
shellfish, from Massachusetts coastal waters. 322 C.M.R.
7.01-7.05, 8.08. DMF is a division of the Department of
Fisheries, Wildlife and Environmental Law Enforcement, which is
part of the Executive Office of Environmental Affairs. Id.;
Mass. Gen. L. c 21A, 2, 7, 8. The Division of Fisheries and
Wildlife, a subcomponent of the Department of Fisheries, Wildlife
and Environmental Law Enforcement, "has authority over all
endangered species of Massachusetts including marine mammals."
Id. (quoting Coates Aff. 3).
The DMF has limited the use of gillnets and lobster pot
fishing gear in certain areas. See id. at 947-75; see also 322
C.M.R. 4.09 (restricting use of gillnets south and west of Cape
Cod), 4.11 (restricting use of gillnets in Massachusetts Bay),
4.13 (regulating fixed gear marking and maximum length
requirements), 6.13 (setting lobster trap limit), 8.10 (fixed
gear restrictions). "In 1994, in response to the alarming
depletion of the Harbor porpoise, DMF ordered that all sink
gillnets be removed from coastal waters north of Cape Ann every
November and from Massachusetts Bay and Cape Cod Bay every
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March." 939 F. Supp. at 975 (citing DMF Rules Update (Nov. 2,
1994)).
In addition, the DMF has established a 500-yard "buffer
zone" around Northern Right whales in Massachusetts coastal
waters. 322 C.M.R. 12.00-12.05 (1993). Defendant Coates
admitted that he had "issued a limited number of scientific
research permits to some whale watch vessels exempting them from
the 500 yard buffer zone surrounding right whales for scientific
research purposes upon application." Coates Aff. 11.
STANDARD OF REVIEW
STANDARD OF REVIEW
In ruling on a motion for preliminary injunction, a
district court is charged with considering:
(1) the likelihood of success on the
merits; (2) the potential for irreparable
harm if the injunction is denied; (3) the
balance of relevant impositions, i.e.,
the hardship to the nonmovant if enjoined
as contrasted with the hardship to the
movant if no injunction issues; and (4)
the effect (if any) of the court's ruling
on the public interest.
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15
(1st Cir. 1996). Under the ESA, however, the balancing and
public interest prongs have been answered by Congress'
determination that the "balance of hardships and the public
interest tips heavily in favor of protected species." National
Wildlife Fed'n v. Burlington Northern R.R., 23 F.3d 1508, 1510
(9th Cir. 1994). Our review of the district court's ruling on a
motion for preliminary injunction is deferential and, "unless the
appellant can show that the lower court misapprehended the law or
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committed a palpable abuse of discretion, the court of appeals
will not intervene." Ross-Simons of Warwick, Inc., 102 F.3d at
16.
DISCUSSION
DISCUSSION
I. Marine Mammal Protection Act
I. Marine Mammal Protection Act
Strahan contends on cross-appeal that the district
court erred when it determined that he could not bring a citizen
suit under the provisions of the Marine Mammal Protection Act.
See 939 F. Supp. at 975. Defendants, on the other hand, argue
that the district court, having properly found that it lacked
jurisdiction under the MMPA, erroneously entered a remedy under
the MMPA when it ordered the Commonwealth, in paragraph 2 of the
preliminary injunction order, to apply for an incidental take
permit pursuant to section 1387 of the MMPA and, in paragraph 4,
to convene a working group similar to those initiated pursuant to
the MMPA. See id. at 990-91. We find that the district court
properly held that it lacked jurisdiction under the MMPA, and
therefore its remedy in paragraph 2 based on the MMPA was
erroneous. We find, however, that the remedy in paragraph 4 was
not ordered pursuant to the MMPA, but instead was intended to be
modelled on MMPA working groups and, therefore, was not
erroneous.
The MMPA does not authorize citizen suits against a
person alleged to be in violation of the Act. The Act states
that, "[e]xcept as otherwise provided in this subchapter, the
Secretary shall enforce the provisions of this subchapter." 16
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U.S.C. 1377. The district court properly recognized that the
Act does not authorize the federal courts to enforce its
provisions in the type of suit brought by Strahan. See 939 F.
Supp. at 975. In addition, the court properly found that the
Administrative Procedure Act, 5 U.S.C. 701 et seq., does not
authorize suits against state officials. See 939 F. Supp. at
975. Based on these findings, the court correctly concluded that
it did not have jurisdiction under the MMPA.
Seeking a contrary ruling, Strahan relies solely on
Kokechik Fisherman's Association v. Secretary of Commerce, 839
F.2d 795, 802 (D.C. Cir. 1988). In that case, the court affirmed
a district court ruling that an incidental take permit issued by
the Secretary of Commerce was contrary to the requirements of the
MMPA. Id. The federal court had jurisdiction to hear the claims
presented in Kokechik by virtue of 16 U.S.C. 1374(d)(6), which
authorizes judicial review of the terms and conditions of a
permit issued by the Secretary. See Kokechik, 839 F.2d at 797.
Thus, the case stands for the uncontroversial proposition that a
citizen can seek review of the Secretary's actions under the
MMPA, and does not provide authority to support Strahan's
position that a private citizen can seek an injunction against a
state official under the MMPA.
Defendants' argument respecting the remedy ordered in
paragraph 2 has merit. Defendants argue that if the district
court has no jurisdiction under the MMPA, it logically follows
that the district court may not order a remedy that requires
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compliance with provisions of the MMPA. In paragraph 2, the
district court ordered the Commonwealth officials to comply with
the terms of the MMPA by applying for an incidental take permit
pursuant to 16 U.S.C. 1387. Except with respect to review of
permits actually granted, Congress vested enforcement of the
provisions of the MMPA in the Secretary of Commerce, not in the
federal courts. See 16 U.S.C. 1377. Consequently, the
district court lacked the jurisdiction to order that the
defendants comply with the MMPA. We therefore vacate paragraph 2
of the district court's preliminary injunction order.
We have considered the argument of the Conservation Law
Foundation that the cross-reference provision, cited by the
district court, effectively makes the substantive provisions of
the MMPA part of the ESA for purposes of enforcement through a
citizen's suit. Although the argument is not frivolous, on
balance we think that the provision does not incorporate one
statute into the other. It merely prevents anyone from arguing
that the less restrictive requirements of one statute supersede
the more restrictive requirements of the other.
On the other hand, the substantive provisions of the
Marine Mammal Protection Act appear to be triggered by the same
activities that the district court, at least for preliminary
injunction purposes, found to be a taking. To the extent that
the defendants may fail to meet the arguably more stringent
standards of the MMPA, the Secretary of Commerce might conclude
that it was improper to issue a permit under the ESA for
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activities that were unlawful under another statute also
administered by the Secretary. It is premature for this Court to
decide how the matter should be resolved if the Secretary took a
different view and issued an ESA permit while ignoring a
violation of the MMPA.
Finally, defendants contend that the district court
lacked jurisdiction under the MMPA to order the defendants to
form a working group modeled on working groups required pursuant
to the MMPA. The district court's order was as follows:
Fourth, the Defendants will be ordered to
convene an Endangered Whale Working Group
and to engage in substantive discussions
with the Plaintiff, or his
representative, as well as with other
interested parties, regarding
modifications of fixed-fishing gear and
other measures to minimize harm to the
Northern Right whales.
939 F. Supp. at 991. We understand the district court here to be
ordering, under its equitable powers, a working group that is
merely modelled on MMPA working groups dedicated to the
preservation of other marine mammals. Nothing suggests that this
portion of the district court's order was issued pursuant to any
authority other than its equitable powers. That is, we do not
read this order as emanating from the provisions of the MMPA
itself, but rather from the court's inherent powers to fashion
appropriate equitable relief. See discussion of equitable
powers, infra at 34. Thus, we find no abuse in this exercise of
discretion and we do not find any error.
II. Endangered Species Act
II. Endangered Species Act
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A. Statutory and regulatory background
A. Statutory and regulatory background
The Endangered Species Act was enacted with the purpose
of conserving endangered and threatened species and the
ecosystems on which they depend. See 16 U.S.C. 1531. The ESA
is "the most comprehensive legislation for the preservation of
endangered species ever enacted by any nation." TVA v. Hill, 437
U.S. 153, 180 (1978). The Act empowers the Secretary of Commerce
to recommend to the Secretary of the Interior that a species be
listed as endangered or threatened and that the species' habitat
be listed as a critical habitat. See 1533(a)(2)(A). The
Secretary of the Interior, if he concurs, shall implement the
designation. See 1533(a)(3)(A). The Act further requires the
Secretary to develop and implement plans for the conservation and
survival of an endangered or threatened species. See 1533(f).
The Northern Right whale has been listed as endangered pursuant
to the ESA. See 50 C.F.R. 222.23(a).
As it relates to this litigation, the ESA prohibits any
person from "tak[ing] any [endangered] species within the United
States or the territorial sea of the United States."
1538(a)(1)(B). In addition, the ESA makes it unlawful for any
person "to attempt to commit, solicit another to commit, or cause
to be committed, any offense defined" in the ESA. See 1538(g).
The term "'take' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct." 1532(19). "'Take' is defined . . . in
the broadest possible manner to include every conceivable way in
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which a person can 'take' or attempt to 'take' any fish or
wildlife." S. Rep. No. 93-307, at 7 (1973); see also Babbitt v.
Sweet Home Chapter of Communities for a Great Oregon, U.S. ,
115 S. Ct. 2407, 2416 (1995) (citing Senate and House Reports
indicating that "take" is to be defined broadly). The Secretary
of the Interior has defined "harm" as "an act which actually
kills or injures wildlife. Such act may include significant
habitat modification or degradation where it actually kills or
injures wildlife by significantly impairing essential behavioral
patterns, including breeding, feeding, or sheltering." See 50
C.F.R. 17.3 (1994); Sweet Home, 115 S. Ct. at 2412-14
(upholding the regulation as a reasonable interpretation of the
statutory language). The term "person" includes "any officer,
employee, agent, department, or instrumentality . . . of any
State, municipality, or political subdivision of a State . . .
[or] any State, municipality, or political subdivision of a State
. . . ." 16 U.S.C. 1532(13).
Under the ESA regulatory scheme, the National Marine
Fisheries Service ("NMFS"), part of the National Oceanic and
Atmospheric Administration ("NOAA") within the Department of
Commerce, is responsible for species of the order Cetacea (whales
and dolphins) under the ESA and the MMPA. See ESA, 16 U.S.C.
1532(15), 1540; MMPA, 16 U.S.C. 1362(12), 1377; Incidental
Take of Endangered, Threatened and Other Depleted Marine Mammals,
54 Fed. Reg. 40,338 (1989). Under the ESA, the Secretary of
Commerce, acting through the NMFS, may permit the taking of an
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endangered species if that taking is "incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity."
1539(a)(1)(B). Pursuant to an application for an incidental
take permit, an applicant must submit a conservation plan
discussing the impact of the incidental takings, the steps the
applicant will take to minimize the impact, and the alternatives
considered with reasons why the alternatives would not be
implemented. See 1539(2)(A).
On August 31, 1995, the NMFS implemented a prohibition
on any taking of a Northern Right whale incidental to commercial
fishing operations. See Taking of Threatened or Endangered
Marine Mammals Incidental to Commercial Fishing Operations;
Interim Permit, 60 Fed. Reg. 45,399 (NMFS) (Aug. 31, 1995). In
addition, the NMFS recently implemented a ban on approaches
within 500 yards of a Northern Right whale. See North Atlantic
Northern Right Whale Protection; Interim Final Rule, 62 Fed. Reg.
21562 (Apr. 25, 1997). This restriction brings the federal
approach distance in line with the Massachusetts 500 yard
approach prohibition. See 322 Code Mass. Reg. 12.05.
Furthermore, the NMFS has proposed an interim final
rule, modifying 50 C.F.R. pt. 229 and set to become effective
November 15, 1997, 62 Fed. Reg. 39157 (July 22, 1997), that
restricts the use of gillnet and lobster pot fishing gear during
specific times of the year unless the gear conforms to marking
and design requirements set forth within the provision. See 62
Fed. Reg. at 39184. The regulation restricts lobster pot
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fishing, unless in compliance with gear modification
requirements, in the Cape Code Bay Restricted Area from January 1
to May 15 of each year. Id. at 39185. During the remainder of
the year, lobster pot gear must comply with at least two of the
gear modification restrictions. Id. at 39186. The Great South
Channel Restricted Lobster Area is similarly restricted from
April 1 to June 30 of each year. Again, during the remainder of
the year, lobster pot gear must comply with at least two of the
gear modification restrictions. Id. With respect to gillnet
fishing, such fishing is prohibited from January 1 through May 15
of each year unless the gear complies with modifications that may
be required by regulations promulgated by the Assistant
Administrator. Id. at 39187. During the remainder of the year,
no person may engage in gillnet fishing unless the gear complies
with at least two modifications listed in the Gillnet Take
Reduction Technology List in paragraph (d)(9) of the section.
Id. The same restrictions apply to the Great South Channel
restricted gillnet area, with a spring closure period from April
1 to June 30 of each year and a restricted period for the
duration of the year. Id. In all other northeast waters,
restricted fishing, with modified gillnet or lobster pot gear
similar to that allowed in the Cape Cod and Great South Channel
areas, is allowed. Id. at 39186-39187. These proposed
restrictions, however, do not impact on the district court's and
this court's consideration of whether Massachusetts, through its
fishing licensure scheme, has violated the provisions of the ESA.
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B. Legal challenges
B. Legal challenges
The district court's reasoning, in finding that
Massachusetts' commercial fishing regulatory scheme likely
exacted a taking in violation of the ESA, was founded on two
provisions of the ESA read in conjunction. The first relates to
the definition of the prohibited activity of a "taking," see
1538(a)(1)(B), and the second relates to the solicitation or
causation by a third party of a prohibited activity, such as a
taking, see 1538(g). The district court viewed these
provisions, when read together, to apply to acts by third parties
that allow or authorize acts that exact a taking and that, but
for the permitting process, could not take place. Indeed, the
district court cited several opinions that have also so held.
See, e.g., Sierra Club v. Yeutter, 926 F.2d 429, 438-39 (5th Cir.
1991) (finding Forest Service's management of timber stands was a
taking of the red-cockaded woodpecker in violation of the ESA);
Defenders of Wildlife v. EPA, 882 F.2d 1294, 1301 (8th Cir. 1989)
(holding that the EPA's registration of pesticides containing
strychnine violated the ESA, both because endangered species had
died from ingesting strychnine bait and because that strychnine
could only be distributed pursuant to the EPA's registration
scheme); Palila v. Hawaii Dep't of Land and Nat. Res., 639 F.2d
495, 497-98 (9th Cir. 1981) (holding state's practice of
maintaining feral goats and sheep in palila's habitat constituted
a taking and ordering state to remove goats and sheep);
Loggerhead Turtle v. County Council of Volusia County, 896 F.
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Supp. 1170, 1180-81 (M.D. Fla. 1995) (holding that county's
authorization of vehicular beach access during turtle mating
season exacted a taking of the turtles in violation of the ESA).
The statute not only prohibits the acts of those parties that
directly exact the taking, but also bans those acts of a third
party that bring about the acts exacting a taking. We believe
that, contrary to the defendants' argument on appeal, the
district court properly found that a governmental third party
pursuant to whose authority an actor directly exacts a taking of
an endangered species may be deemed to have violated the
provisions of the ESA.
The defendants argue that the statute was not intended
to prohibit state licensure activity because such activity cannot
be a "proximate cause" of the taking. The defendants direct our
attention to long-standing principles of common law tort in
arguing that the district court improperly found that its
regulatory scheme "indirectly causes" these takings.
Specifically, the defendants contend that to construe the proper
meaning of "cause" under the ESA, this court should look to
common law principles of causation and further contend that
proximate cause is lacking here. The defendants are correct that
when interpreting a term in a statute which is, like "cause"
here, well-known to the common law, the court is to presume that
Congress intended the meaning to be interpreted as in the common
law. See Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir. 1994). We
do not believe, however, that an interpretation of "cause" that
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includes the "indirect causation" of a taking by the Commonwealth
through its licensing scheme falls without the normal boundaries.
The defendants protest this interpretation. Their
first argument is that the Commonwealth's licensure of a
generally permitted activity does not cause the taking any more
than its licensure of automobiles and drivers solicits or causes
federal crimes, even though automobiles it licenses are surely
used to violate federal drug laws, rob federally insured banks,
or cross state lines for the purpose of violating state and
federal laws. The answer to this argument is that, whereas it is
possible for a person licensed by Massachusetts to use a car in a
manner that does not risk the violations of federal law suggested
by the defendants, it is not possible for a licensed commercial
fishing operation to use its gillnets or lobster pots in the
manner permitted by the Commonwealth without risk of violating
the ESA by exacting a taking. Thus, the state's licensure of
gillnet and lobster pot fishing does not involve the intervening
independent actor that is a necessary component of the other
licensure schemes which it argues are comparable. Where the
state has licensed an automobile driver to use that automobile
and her license in a manner consistent with both state and
federal law, the violation of federal is caused only by the
actor's conscious and independent decision to disregard or go
beyond the licensed purposes of her automobile use and instead to
violate federal, and possibly state, law. The situation is
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simply not the same here. In this instance, the state has
licensed commercial fishing operations to use gillnets and
lobster pots in specifically the manner that is likely to result
in a violation of federal law. The causation here, while
indirect, is not so removed that it extends outside the realm of
causation as it is understood in the common law.1
The defendants' next argument need only detain us
momentarily. They contend that the statutory structure of the
ESA does not envision utilizing the regulatory structures of the
states in order to implement its provisions, but that it instead
leaves that implementing authority to NMFS. The point that the
defendants miss is that the district court's ruling does not
impose positive obligations on the Commonwealth by converting its
regulation of commercial fishing operations into a tool of the
federal ESA regulatory scheme. The Commonwealth is not being
compelled to enforce the provisions of the ESA. Instead, the
district court's ruling seeks to end the Commonwealth's
continuing violation of the Act.2
1 The defendants' citation to cases in which courts refused to
impose liability for a state's exercise of its regulatory
activity is misplaced. In Haddock v. Board of Dental Examiners
of California, 777 F.2d 462, 463 (9th Cir. 1985), for example,
the relevant statute applied only to "employers," "employment
agencies," and "labor organizations," and the state's Board of
Dental Examiners clearly did not fall within the definition of
those terms. Under the ESA's definition of a "person" who is
prohibited from exacting a taking, the Commonwealth just as
clearly falls within the definition.
2 We note that the defendants' concerns about the authority of
the district court to force the Commonwealth to ban gillnet and
lobster pot fishing where the federal administering agency, NMFS,
has chosen not to do so are misplaced. Had the district court
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Defendants also contend that the district court's
ruling is erroneous because it fails to give deference to the
position of NMFS, the federal agency charged with enforcing the
ESA. The defendants' position is flawed for two reasons. First,
the ESA gives NMFS, through the Secretary, discretion in
authorizing takings incidental to certain commercial activity;
the Act does not give a federal court, having determined that a
taking has occurred, the same discretion in determining whether
to grant injunctive relief. Second, the fact that NMFS has
expressly declined to ban gillnet or lobster pot fishing in Cape
Cod Bay does not reflect a policy determination by NMFS that such
a ban is unnecessary. For these two reasons, we find the
defendants' deference arguments without merit.
C. Factual challenges
C. Factual challenges
We review the district court's findings of fact for
clear error. See Concordia Co. v. Panek, 115 F.3d 67, 69 (1st
Cir. 1997). The district court found that entanglement with
fishing gear in Massachusetts waters caused injury or death to
Northern Right whales. See 939 F. Supp. at 984. Indeed, the
district court cited several of the Commonwealth's documents in
support of this finding, including its statement that "'[f]ive
right whales have been found entangled in fixed fishing gear in
Massachusetts waters; three in gillnets and two in lobster
actually ordered such a ban, we might consider these concerns,
but indeed the district court has not required the Commonwealth
in its injunction to impose such a ban. The situation complained
of by the defendants is simply not before us.
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lines.'" Id. (quoting Right Whales in Massachusetts Waters, An
Executive Summary at 2). The court further cited to affidavits
of three scientists that suggested that entanglement of Northern
Right whales had harmed, injured, or killed those whales. The
court cited eleven occasions on which Northern Right whales had
been found entangled in fishing gear in Massachusetts waters
between 1978 and 1995. The court also indicated that at least
fifty-seven percent of all Northern right whales have scars
indicating prior entanglement with fishing gear and noted that,
even where the whale survives, the entanglement still wounds the
whale. Although these findings indicate only that entanglements
have occurred in Massachusetts waters, the district court
determined that three whales had been found entangled in gear
deployed in Massachusetts waters.
The defendants contend that the factual evidence before
the district court did not support a finding that the
Commonwealth has perpetrated a taking. The defendants' main
contention is that the "District Court made its 'taking'
determination . . . based on speculation that Northern Right
whales have become entangled in fishing gear: (1) deployed in
Massachusetts coastal waters; and (2) licensed by the
Commonwealth." Appellants' Br. at 42. The defendants first
state that they submitted affidavit evidence indicating that no
deaths of Northern Right whales had occurred in Massachusetts
coastal waters. While this may be true, it answers only half the
taking question, which bars not only killings of, but also
-22-
injuries to, Northern Right whales. Because the district court
need not have made a determination as to whale deaths in
determining whether the Commonwealth exacted a taking, we find no
error.
The defendants acknowledge that the district court
relied on a scientist's affidavit that was supplied by amicus
curiae Conservation Law Foundation. The defendants do not
challenge the factual statements asserted in the affidavit,
including the one relied upon by the district court that "[t]hree
of the entanglements of endangered whales . . . clearly involved
fishing gear that was deployed in Massachusetts waters." Despite
the defendants' protests that the district court was engaging in
speculation when it found that whales have become entangled in
fishing gear deployed in Commonwealth's waters, in fact the
district court relied on the unchallenged factual assertion in
the scientific affidavit. Thus, the defendants' first challenge
to the district court's fact-finding speculation is not valid.
With respect to the district court's determination that
these entanglements involved gear licensed by the Commonwealth,
the district court relied on the affidavit regarding the three
entanglements that occurred in Massachusetts waters. The
affidavit explained that the whales were found entangled in gear
"fixed" in Massachusetts waters such that the whale could not
escape because it could not break free of the gear. The district
court's inference that gear fixed in Massachusetts waters was
licensed by the Commonwealth, and was not set illegally or
-23-
brought into Massachusetts waters from another area by the whale,
was reasonable and we find no clear error in that inference.
The defendants next contend that the district court
ignored evidence of the significant efforts made by the
Commonwealth to "minimize Northern Right Whale entanglements in
fishing gear," and evidence of other causes of takings of
Northern Right whales. With respect to the determination of
whether a taking has occurred, the district court quite rightly
disregarded such evidence. Given that there was evidence that
any entanglement with fishing gear injures a Northern Right whale
and given that a single injury to one whale is a taking under the
ESA, efforts to minimize such entanglements are irrelevant. For
the same reasons, the existence of other means by which takings
of Northern Right whales occur is irrelevant to the determination
of whether the Commonwealth has engaged in a taking.
Finding neither any error of law nor any clear error
with respect to the factual findings, we believe that the
district court properly applied the ESA to the facts presented
and was correct in enjoining the Commonwealth so as to prevent
the taking of Northern Right whales in violation of the ESA.
III. Scope of injunctive relief
III. Scope of injunctive relief
Defendants claim that the injunctive relief granted by
the district court goes beyond the scope of remedies available in
an action against state officials. Specifically, defendants
claim that, although the district court could have ordered an
injunction barring all Commonwealth licensing activity, it could
-24-
not require the Commonwealth to implement measures designed to
accord Northern Right whales greater regulatory protection.
Defendants argue that the statutory scheme, the Eleventh
Amendment, and the Tenth Amendment all bar the measures ordered
by the district court.
A. Statutory scheme/Eleventh Amendment
A. Statutory scheme/Eleventh Amendment
The ESA's citizen suit provisions authorize
any person [to] commence a civil suit on
his own behalf-- (a) to enjoin any
person, including the United States and
any other governmental instrumentality or
agency (to the extent permitted by the
eleventh amendment to the Constitution),
who is alleged to be in violation of any
provision of this chapter or regulation
issued under the authority thereof . . .
.
16 U.S.C. 1540(g)(1). The very fact that Congress has limited
its authorization to suits allowed by the Eleventh Amendment
reinforces the conclusion that Congress clearly envisioned that a
citizen could seek an injunction against a state's violations of
the ESA. Defendants' claim that the district court exceeded its
authority to order injunctive relief against the Commonwealth
under the ESA statutory scheme is ultimately grounded in the
limitations provided under the Eleventh Amendment.
The Eleventh Amendment provides:
The Judicial power of the United States
shall not be construed to extend to any
suit in law or equity, commenced or
prosecuted against one of the United
States by the Citizens of another State,
or by Citizens or Subjects of any Foreign
State.
-25-
U.S. Const. amend. XI. "The Amendment . . . enacts a sovereign
immunity from suit, rather than a nonwaivable limit on the
federal judiciary's subject-matter jurisdiction." Idaho v. Coeur
d'Alene Tribe of Idaho, S. Ct. , 1997 WL 338603, at * 5
(June 23, 1997). This Amendment has been interpreted to provide
sovereign immunity not only to suits by citizens of another
state, but also to suits by the state's citizens. Id. Suits
invoking both diversity and federal-question jurisdiction of
Article III may be barred by the Amendment. Id.
Nevertheless, familiar exceptions to the sovereign
immunity bar exist. A suit may be brought by a citizen against a
state in two manners. The first occurs when a state waives its
sovereign immunity and allows a case to be brought against it in
federal court. Id. The other allows suits against state
officials seeking declaratory and injunctive relief against the
state officials in their individual capacities who act in
violation of federal law. See Coeur d'Alene Tribe of Idaho,
S. Ct. , 1997 WL 338603, at * 6; Ex Parte Young, 209 U.S. 123
(1908).
Defendants, grasping at text in the district court
opinion that suggests a limit on the extent of the Ex Parte Young
doctrine, see 939 F. Supp. at 981 ("The holding of Ex Parte Young
has been limited to actions seeking only declaratory and/or
injunctive relief against State officials to halt continuing
violations of federal law.")(emphasis added), contend that a
federal court, after finding a probable violation by state
-26-
officials in a citizen suit under the ESA, may literally do
nothing more than simply order a cessation of the violation, in
the course of fashioning a remedy. Defendants' understanding of
the Ex Parte Young doctrine is too broad. The doctrine is
directed only at providing a jurisdictional exception to the
traditional Eleventh Amendment sovereign immunity bar by limiting
a federal court's jurisdiction to hear a case involving a state
defendant to one in which a plaintiff brings suit against a state
official, seeking only prospective injunctive relief to "'end a
continuing violation of federal law.'" Seminole Tribe of Florida
v. Florida, 116 S. Ct. 1114, 1132 (1996) (quoting Green v.
Mansour, 474 U.S. 64, 68 (1985)). Under this doctrine, a federal
court lacks jurisdiction to hear a case in which the plaintiff
seeks retrospective and/or legal remedies. See Edelman v.
Jordan, 415 U.S. 651, 666-69 (1974). Thus, the Ex Parte Young
exception to the Eleventh Amendment limits the scope of a
district court's jurisdiction to hear a case to those cases
requesting prospective equitable relief against state officials,
and does not place limits on the scope of the equitable relief
that may be granted once appropriate jurisdiction is found.
Therefore, defendants' Eleventh Amendment claim is without merit.
B. Tenth Amendment
B. Tenth Amendment
Defendants argue that the district court's power to
order injunctive relief is limited by the Tenth Amendment.
Specifically, they argue that the Tenth Amendment bars "federal
action, that 'commandeer[s] state governments into service of
-27-
federal regulatory purposes,' because it is inconsistent with the
Constitution's division of authority between federal and state
governments.'" Appellant's Brief at 46 (quoting New York v.
United States, 505 U.S. 144, 176 (1992)). The defendants argue
that the district court's ruling in effect violates federalism
principles by commandeering the state's regulatory processes to
ban certain commercial fishing activity that the federal agency
could ban directly.
The defendants' argument is two-fold. They suggest
that Congress did not intend to preempt state regulation of
commercial fishing when it enacted the ESA, and also claim that
the district court's interpretation of the ESA works to preempt
state authority to regulate in the area of commercial fishing.
The Tenth Amendment provides:
The powers not delegated to the United
States by the Constitution, nor
prohibited by it to the States, are
reserved to the States respectively, or
to the people.
U.S. Const. amend. X. Under the federalism structure suggested
by the Amendment, "[t]he States unquestionably do retai[n] a
significant measure of sovereign authority . . . to the extent
that the Constitution has not divested them of their original
powers and transferred those powers to the Federal Government."
Garc a v. San Antonio Metro. Transit Auth., 469 U.S. 528, 549
(1985), quoted in New York v. United States, 505 U.S. at 156. It
is certainly true that, while Congress may regulate the conduct
of individuals, it may not generally regulate the conduct of the
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states. See New York v. United States, 505 U.S. at 166 ("The
Framers explicitly chose a Constitution that confers upon
Congress the power to regulate individuals, not States."),
quoted in Printz v. United States, S. Ct. , 1997 WL 351180,
at *11 (June 27, 1997). Nevertheless, a valid act of Congress,
enacted pursuant to its Commerce Clause powers, seeking to
regulate a particular area, is the "supreme law of the land,"
U.S. Const. art. VI, cl. 2 ("This Constitution, and the Laws of
the United States which shall be made in Pursuance thereof . . .
shall be the supreme Law of the Land . . . ."), and preempts
state laws or regulations that conflict with the act. See
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992);
Philip Morris, Inc. v. Harshbarger, F.3d , 1997 WL 458881,
at *7 (1st Cir. Aug. 28, 1997).
With respect to their preemption argument, the
defendants contend that Congress did not intend to preempt state
regulatory powers, which "'go to the heart of representative
government.'" Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)
(quoting Sugarman v. Dougall, 413 U.S. 634, 647 (1973)), quoted
in Appellant's Br. at 34. When Congress enacted the ESA, it
intended the Act to be as far-reaching as possible and to prevent
any taking of an endangered species, "whatever the cost." TVA v.
Hill, 437 U.S. 153, 184 (1978). "[E]xamination of the language,
history, and structure of the legislation . . . indicates beyond
doubt that Congress intended endangered species to be afforded
the highest of priorities." Id. at 174. The Act's prohibition
-29-
on takings extends to all private entities and to "any officer,
employee, agent, department, or instrumentality of the Federal
Government, of any State, municipality, or political subdivision
of a State, or of any foreign government." 16 U.S.C. 1532. By
including the states in the group of actors subject to the Act's
prohibitions, Congress implicitly intended to preempt any action
of a state inconsistent with and in violation of the ESA. We
agree with the district court that the Commonwealth's regulation
of commercial fishing likely results in a taking in violation of
the far-reaching prohibitions of the ESA. The district court
properly concluded that the scheme as it presently operates
cannot continue insofar as its operation is inconsistent with the
intent of the ESA. See Palila v. Hawaii Dep't of Land & Nat.
Res., 852 F.2d 1106, 1110 (9th Cir. 1988) (upholding injunction
ordering state to remove all sheep maintained by state in Palila
habitat because habitat destruction by the sheep resulted in a
taking of the Palila); Palila v. Hawaii Dep't of Land & Nat.
Res., 639 F.2d 495, 497-98 (9th Cir. 1981) (holding that Hawaii's
maintenance of feral sheep and goats that destroyed the habitat
of an endangered species violated the ESA because the endangered
species was threatened by the continuation of that activity);
Loggerhead Turtle v. County Council of Volusia County, Florida,
896 F. Supp. 1170, 1180-81 (M.D. Fla. 1995) (holding that
county's authorization of beach access to vehicles, which
disrupted the habitat of endangered species, resulted in a taking
in violation of the ESA); see also Defenders of Wildlife v. EPA,
-30-
882 F.2d 1294, 1301 (8th Cir. 1989) (finding that the EPA's
regulatory scheme for the registration of strychnine pesticides
violated the ESA by authorizing the use by third parties of the
pesticides whose strychnine ingredient was poisoning endangered
species and thus supporting the proposition that a regulatory
scheme authorizing third parties to engage in actions that result
in takings itself violates the ESA).3
We turn to the court's conclusion and order.
Defendants wisely do not challenge Congress' authority to enact
the Endangered Species Act. Nor do they contend that the
Commonwealth's commercial fishing regulations, to the extent that
they may conflict with the ESA, survive Supremacy Clause
analysis. Instead, the defendants contend that the district
court, having found that the Commonwealth's regulatory scheme
likely violates the ESA, lacks the authority to order them to
form a working group and engage in substantive discussions toward
rectifying their statutory violation with working group members
whose membership is directed ultimately by the district court.
The defendants reason that the district court, through its order,
has "commandee[red] the [regulatory] processes of the
[Commonwealth] by directly compelling [it] to enact and enforce a
federal regulatory program," New York v. United States, 505 U.S.
3 The defendants suggest that Defenders of Wildlife is
consistent with their position that the ESA acts only upon
federal agencies and individuals because it dealt with a federal
agency's regulatory scheme. The defendants' proposition ignores
the clear language of the statute, which explicitly defines
persons who are prohibited from engaging in a taking to include
the states and state officials. See 16 U.S.C. 1532(13).
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144, 161 (1992), and thereby oversteps the delicate federalism
line. The district court did not order the Commonwealth to ban
gillnet and lobster pot fishing although the defendants
incorrectly, and repeatedly, so claim throughout their brief.
Rather, the injunction ordered the Commonwealth to consider means
by which gillnets and lobster pots may be modified in order for
the Commonwealth to avoid authorizing takings in its coastal
waters in violation of federal law. The injunction did not order
specific modifications, let alone ban the licensure scheme.
Indeed, the court's order did not even command the Commonwealth
to restrict its permitting process in any way. Thus, it is
impossible to conclude that the district court commandeered or
usurped the state's regulatory authority to manage commercial
fishing under its regulatory scheme and we reject the defendants'
contention that it did so.
The defendants' argument revolves around a line of
reasoning that we find inapposite in the context of this
litigation. The defendants rely heavily on New York v. United
States, which discussed the authority of Congress to direct the
states to regulate the disposition of nuclear waste produced by
the states. See 505 U.S. at 163-67. The Court struck down a
provision of the Act as violating the Tenth Amendment's
provisions, reasoning that, although Congress may directly
require or prohibit certain acts, "it lacks the power directly to
compel the States to require or prohibit those acts." Id. at
166. The Court recognized that Congress does not have the
-32-
constitutional authority "to require the States to govern
according to Congress' instructions." Id. at 162.
The defendants also cite a Fifth Circuit opinion that
relies on the reasoning of New York v. United States to strike
down the Lead Contamination Control Act ("LCCA"), which required
states to establish programs for the removal of lead contaminants
in school and day care drinking water systems. See Acorn v.
Edwards, 81 F.3d 1387, 1392-95 (5th Cir. 1996). Relying on New
York v. United States's reasoning barring Congress from directing
the states to enact a particular regulatory scheme, the Fifth
Circuit held that the Act's provisions requiring the states to
formulate a particular regulatory scheme violated the Tenth
Amendment's federalism balance. See 81 F.3d at 1394.
Similarly, defendants have directed our attention to
Printz v. United States, U.S. , 1997 WL 351180 (June 27,
1997), which was decided after this case was briefed and argued.
In Printz, the Court had before it an act of Congress regulating
handguns. The act, referred to as the "Brady Act," required
state law enforcement officers, called "chief law enforcement
officers" ("CLEOs"), to "make a reasonable effort to ascertain
within 5 business days whether receipt or possession [of a
handgun by the applicant] would be in violation of the law,
including research in whatever State and local recordkeeping
systems are available and in a national system designated by the
Attorney General." 18 U.S.C. 922(s)(2), quoted in Printz, 1997
WL 351180, at *4. Although the Brady Act does not require the
-33-
CLEO to take action if he determines that a pending transaction
would be unlawful, in the event that he did notify the firearms
dealer, he would be required, upon request, to provide the
prospective purchaser with a written statement of the reasons for
the determination. Printz, 1997 WL 351180, at *4. If the CLEO
does not uncover any reason for objecting to the sale, he must
destroy all related records. Id. The Court determined that "the
Brady Act purports to direct state law enforcement officers to
participate, albeit only temporarily, in the administration of a
federally enacted regulatory scheme." Id. The Court recognized
that the Constitution places responsibility for administering the
laws of Congress on the President. Because the Brady Act instead
transferred that responsibility to the fifty states, its
provisions were struck down as inconsistent with the provisions
of the Tenth Amendment. In reaching this conclusion, the Court
followed the reasoning of New York v. United States.
Although the defendants are correct when they assert
that the commands of the Tenth Amendment apply to all branches of
the federal government, including the federal courts, their
arguments under the reasoning of New York v. United States and
its progeny are misguided. The situation presented here is not
one in which the district court has directed the state to enact a
particular regulatory regime that enforces and furthers a federal
policy, as was the situation presented in the caselaw cited by
the defendants. In complaining that the district court's order
suggests that the Commonwealth must make the choice of either not
-34-
regulating in a particular area or risking the federal
government's commandeering its regulatory processes if it chooses
to regulate, the defendants repeatedly align their position with
that of the states in New York v. United States and Acorn v.
Edwards.4 The defendants' argument ignores the distinguishing
facts of those cases. First, the states in those cases were not
found to be in violation of a congressional act passed pursuant
to its constitutional authority. Second, the states in those
cases were directed to take positive action with respect to a
particular field. Here, the defendants are not being ordered to
take positive steps with respect to advancing the goals of a
4 Defendants' argument that the situations are comparable is as
follows:
In fact, New York had "enact[ed] legislation
providing for the siting and financing of a
disposal facility in New York" in order to
obtain the benefits of the federal act in
question. New York v. United States, 505
U.S. at 154. Under the District Court's
rationale in this case, therefore, New York
should have been required to take title to
radioactive wastes pursuant to the federal
Low-Level Radioactive Waste Policy Act,
because it had not "cease[d] exercising
control" over low-level radioactive waste.
Likewise under the District Court's
rationale, Louisiana in Acorn, should have
been required to establish remedial action
programs for the removal of lead contaminants
from school and day-care drinking water
systems pursuant to the LCCA, because
Louisiana had distributed to local
educational agencies, schools, and day care
centers a "fact sheet" published by the
Environmental Protection Agency ("EPA")
listing non-lead free drinking water coolers.
Appellants' Br. at 50.
-35-
federal regulatory scheme. Rather, the court directed the
defendants to find a means of bringing the Commonwealth's scheme
into compliance with federal law.
The situation faced by the district court, as it
correctly recognized, see 939 F. Supp. at 979-80, was one held by
the New York Court to be permissible under the Tenth Amendment.
The Court, in discussing acceptable uses of congressional
authority with respect to the states, recognized that "where
Congress has the authority to regulate private activity under the
Commerce Clause, we have recognized Congress' power to offer
States the choice of regulating that activity according to
federal standards or having state law pre-empted by federal
regulation." 505 U.S. at 167. The district court, in answering
the defendants' Tenth Amendment challenge, recognized that the
Commonwealth has the choice of either regulating in this area
according to federal ESA standards or having its regulations
preempted by the federal ESA provisions and regulations.
Because, for preliminary injunction purposes, the Commonwealth's
regulation of this area is inconsistent with federal ESA
standards, this situation falls squarely within the permissible
balance of federal and state authority recognized by the New York
Court and the Commonwealth's regulations are preempted by the
federal ESA provisions.
We believe that the district court acted within the
scope of its equitable powers. The ESA governs the relief
available in a citizen suit and authorizes citizen suits to
-36-
enjoin acts in violation of the ESA. See 16 U.S.C.
1540(g)(1)(A).
"[T]he comprehensiveness of this
equitable jurisdiction is not to be
denied or limited in the absence of a
clear and valid legislative command.
Unless a statute in so many words, or by
a necessary and inescapable inference,
restricts the court's jurisdiction in
equity, the full scope of that
jurisdiction is to be recognized and
applied."
Weinberger v. Romero-Barcel , 456 U.S. 305, 313 (1981) (quoting
Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)). The ESA
does not limit the injunctive power available in a citizen suit,
and, thus, we understand the Act to grant a district court the
full scope of its traditional equitable injunctive powers.
"Equitable injunction includes the power to provide complete
relief in light of the statutory purpose." Ephraim Freightways,
Inc. v. Red Ball Motor Freight, Inc., 376 F.2d 40, 41 (10th Cir.
1967). In fashioning relief, the district court found it
necessary to outline the exact contours of the Commonwealth's
violation and the extent of preemption. Toward this end, the
district court sought the input and assistance of interested
parties, through the creation of the Working Group, which we
consider "necessary and appropriate to enforce compliance with
the Act." Porter, 328 U.S. at 400.
IV. Forcing unwanted relationships
IV. Forcing unwanted relationships
Regarding the Working Group, the defendants contend
that "[e]quity is not intended to force unwanted relationships."
Appellants' Br. at 53. In support of this proposition, they cite
-37-
only Brewster v. Dukakis, 687 F.2d 495 (1st Cir. 1982). In that
case, a district court was presented with disputes regarding
certain provisions of a consent decree concerning the treatment
of mentally ill persons within the Commonwealth of Massachusetts.
Id. at 495. In connection with its ongoing supervisory powers
over the consent decree, the district court ordered the
Commonwealth to create a legal advocacy program on behalf of
mentally ill or retarded persons. Id. A panel of this court
held that the language and purpose of the consent decree, from
which the court's authority over the parties derived, did not
empower the district court to order the Commonwealth to pay for a
general services program to deal with general issues related to
the subjects' disabilities. Id. at 498-500. The court further
recognized that the district court did not have the authority to
order this remedy based on its general equitable powers because,
faced with no admission of liability by the Commonwealth and
having found no violation by the Commonwealth, such traditional
powers had not been invoked in that case.
The instant case is significantly different because the
district court found a likelihood that the Commonwealth had
committed a statutory violation and thereby its full equitable
powers were invoked. Thus, the sole support for the defendants'
contention is inapposite, and we find no merit in their argument.
V. Irreparable harm to the defendants
V. Irreparable harm to the defendants
The defendants contend that, given the contentious
relationship between the parties, the district court's injunction
-38-
ordering them to engage in a relationship or dialogue with
Strahan inflicts irreparable harm upon the Commonwealth.
Although it is generally true in the preliminary injunction
context that the district court is required to weigh and balance
the relative harms to the non-movant if the injunction is granted
and to the movant if it is not, see Romero-Barcel , 456 U.S. at
312, in the context of ESA litigation, that balancing has been
answered by Congress' determination that the "balance of
hardships and the public interest tips heavily in favor of
protected species." National Wildlife Fed'n, 23 F.3d at 1510.
The defendants have not cited any authority to the contrary and,
accordingly, we follow these precedents in deferring to Congress'
pronouncements regarding the weight to be given the endangered
species under the ESA and find no error in the district court's
order in this respect.
VI. Strahan's remaining claims
VI. Strahan's remaining claims
A. Mandatory immediate injunctive relief
A. Mandatory immediate injunctive relief
Strahan contends that the district court committed
reversible error by refusing to grant the injunctive relief he
sought. He contends that the Court in TVA ruled that injunctive
relief is mandatory upon a finding of a violation of the ESA. In
fact, the TVA Court specifically rejected this proposition,
stating "[i]t is correct, of course, that a federal judge sitting
as a chancellor is not mechanically obligated to grant an
injunction for every violation of law." TVA, 437 U.S. at 193.
The Court recognized, however, that in the instance presented, in
-39-
which the activity at issue would have caused eradication of an
entire endangered species if not enjoined, the only remedy that
could prevent that outcome was a permanent injunction halting the
activity. Id. at 194-95.
The district court, having determined that the
Commonwealth's probable violation of the ESA could be curtailed
without such extreme measures, declined to impose the injunction
Strahan sought. The district court was not required to go any
farther than ensuring that any violation would end. See id. at
193-95; Romero-Barcel , 456 U.S. at 311-16 (holding that, in the
face of a violation of the Federal Water Pollution Control Act, a
district court is not required to enjoin any and all activity
related to the Act's violation, but instead is charged with
developing remedies to ensure the violator's compliance with the
Act). We are satisfied that the district court was aware of the
need to curtail any violation and bring about the Commonwealth's
compliance with the ESA and that its order adequately achieves
those ends.
B. Error of fact
B. Error of fact
Strahan argues that the district court erred in finding
that "[w]ith the exception of the summer of 1986, '[n]orthern
right whales are rarely seen in Cape Cod Bay after May 15." 939
F. Supp. at 968. He supports his claim with information
regarding sightings of Northern Right whales through 1995 that he
did not present below. We will conclude that a finding is
clearly erroneous "only when, after reviewing the entire record,
-40-
we are left with the definite and firm conviction that a mistake
has been committed.'" Clement v. United States, 980 F.2d 48, 53
(1st Cir. 1992) (quoting Deguio v. United States, 920 F.2d 103,
105 (1st Cir. 1990)). This claim need not detain us, because, as
Strahan points out in his brief, his claim is based on
information not presented to the court below and, therefore, it
is not properly before this court. "'Except for motions to amend
based on newly discovered evidence, the trial court is only
required to amend its findings of fact based on evidence
contained in the record. To do otherwise would defeat the
compelling interest in the finality of litigation.'" Aybar v.
Crispin-Reyes, F.3d , 1997 WL 342489, at *25 (June 26, 1997)
(quoting Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th
Cir. 1986)); see also Lyons v. Jefferson Bank & Trust, 793 F.
Supp. 989, 991 (D. Colo. 1992), aff'd in part, rev'd in part,
994 F.2d 716 (10th Cir. 1993). The docket reveals that Strahan
has filed no motion to amend this finding, based on newly
discovered evidence. "That other evidence not in the record may
negate the [d]istrict [c]ourt's inference is beside the point."
Fontenot, 791 F.2d at 1220. Strahan may not now claim error in
the district court's reasonable finding based on his own failure
to present evidence to the lower court. See Aybar, F.3d ,
1997 WL 342489, at *25-26. Given the record before it, the
district court drew a reasonable inference and relied on that
inference in making its findings of fact. We find no error here.
C. Strahan's right to conduct full discovery
C. Strahan's right to conduct full discovery
-41-
In his statement of the issues, Strahan contends that
the district court erred in denying him his right to full
discovery in a civil action in federal district court. Beyond
this bare assertion, Strahan fails to argue further in his brief
in support of this contention. It is well-established that
issues adverted to in a perfunctory
manner, unaccompanied by some effort at
developed argumentation, are deemed
waived. . . . It is not enough merely to
mention a possible argument in the most
skeletal way, leaving the court to do
counsel's work. . . . Judges are not
expected to be mindreaders.
Consequently, a litigant has an
obligation to spell out its arguments
squarely and distinctly, or else forever
hold its peace."
King v. Town of Hanover, 116 F.3d 965, 970 (1st Cir. 1997)
(citations and internal quotations omitted). Accordingly, we
decline to review Strahan's discovery claim.
CONCLUSION
CONCLUSION
For the foregoing reasons, the decision below is
vacated in part and affirmed in part.
vacated affirmed
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