Strahan v. Coxe

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

-28-

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,

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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).

-31-

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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