127 F.3d 155 (1st Cir. 1997), 96-2063, Strahan v. Coxe

Docket Nº:96-2063.
Citation:127 F.3d 155
Party Name:Richard Max STRAHAN, Plaintiff-Appellee, v. Trudy COXE, Secretary of Massachusetts Executive Office of Environmental Affairs, et al., Defendants-Appellants. Richard Max STRAHAN, Plaintiff-Appellant, v. Trudy COXE, Secretary of Massachusetts Executive Office of Environmental Affairs, et al., Defendants-Appellees.
Case Date:October 09, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 155

127 F.3d 155 (1st Cir. 1997)

Richard Max STRAHAN, Plaintiff-Appellee,

v.

Trudy COXE, Secretary of Massachusetts Executive Office of

Environmental Affairs, et al., Defendants-Appellants.

Richard Max STRAHAN, Plaintiff-Appellant,

v.

Trudy COXE, Secretary of Massachusetts Executive Office of

Environmental Affairs, et al., Defendants-Appellees.

No. 96-2063.

United States Court of Appeals, First Circuit

October 9, 1997

Heard June 4, 1997.

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[Copyrighted Material Omitted]

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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.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

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TORRUELLA, Chief Judge.

In April 1995, Richard Strahan ("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) "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. 1 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

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 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

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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, 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

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. p 3).

The DMF has limited the use of gillnets and lobster pot fishing gear in certain areas. See id. at 974-75; 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 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

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purposes upon application." Coates Aff. p 11.

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...

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