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Strahan v. Coxe

ELR Citation: 28 ELR 20114
Nos. 96-2063, 127 F.3d 155/(1st Cir., 10/09/1997) Injunctive order vacated in part and affirmed in part

The court vacates part of an injunction requiring state environmental agency officials to apply for a permit under the Marine Mammal Protection Act (MMPA) for takings caused by the agency's permitting and licensing operations, but affirms the remaining provisions of the injunction that are aimed at minimizing harm to Northern right whales. The court first holds that the MMPA does not authorize citizen suits against a person alleged to be in violation of the Act. 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. Because the district court lacked jurisdiction under the MMPA, the provision in the injunction requiring the state officials to comply with the MMPA by applying for an incidental take permit. The court, however, finds no error in the provision ordering the state officials to convene working groups modelled on MMPA working groups. Nothing suggests that this part of the order was issued pursuant to any authority other than the district court's equitable powers.

The court next holds that the district court's determination that Massachusetts' commercial fishing regulatory scheme likely exacted a taking in violation of the Endangered Species Act (ESA) was proper. 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 court also rejects the argument that the district court's ruling fails to give deference to the National Marine Fisheries Service's (NMFS') position. The ESA gives the NMFS 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. The court further holds that there was no clear error in the district court's factual findings.

The court then rejects a number of the state officials' claims. The claim that the order violates the Eleventh Amendment to the U.S. Constitution has no merit. The Ex Parte Young, 209 U.S. 123 (1908), 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. Likewise, the injunctive order does not violate the Tenth Amendment to the Constitution. Because the state'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 U.S. Supreme Court in New York v. United States, 505 U.S. 144, 22 ELR 21082 (1992). The court rejects the argument that equity is not intended to force unwanted relationships such as those created by the working groups. The district court's full equitable power was invoked when it found a likelihood that the state committed a statutory violation. The court also rejects the state officials' irreparable harm argument, because under the ESA the balance of hardships and the public interest are tipped heavily in favor of protected species. The court further holds that the order adequately achieves the goal of curtailing ESA violations, that the district court drew a reasonable inference given the record before it, and that plaintiff-conservation group failed to argue a discovery claim adequately enough for the court to review it.

[The district court decision in this litigation is published at 27 ELR 20254].

Counsel for Plaintiff
Richard M. Strahan
c/o Conservation Research Group
Boston College Law School
885 Centre St., Newton MA 02159
(617) 552-0927

Counsel for Defendants
Salvatore M. Giorlandino, Ass't Attorney General
Attorney General's Office
One Ashburton Pl., Boston MA 02108
(617) 727-9173

Before Campbell and Boudin, JJ.