907 F.2d 265 (1st Cir. 1990), 90-1057, Maine Audubon Soc. v. Purslow

Docket Nº:90-1057.
Citation:907 F.2d 265
Party Name:MAINE AUDUBON SOCIETY, et al., Plaintiffs, Appellants, v. Emery PURSLOW, et al., Defendants, Appellees.
Case Date:July 06, 1990
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 265

907 F.2d 265 (1st Cir. 1990)

MAINE AUDUBON SOCIETY, et al., Plaintiffs, Appellants,


Emery PURSLOW, et al., Defendants, Appellees.

No. 90-1057.

United States Court of Appeals, First Circuit

July 6, 1990

Heard July 6, 1990.

Decided .

Page 266

Karin R. Tilberg and Harrison L. Richardson, with whom Richardson & Troubh and Elizabeth G. Stouder were on brief, for plaintiffs, appellants.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

Fairly characterizable as a matter of principle, this appeal challenges the district court's direction that two respected members of the Maine bar jointly pay a small monetary sanction ($250.00). 1 Although we believe that the sanction order approached the margins of the district court's wide discretion, we cannot say it crept past the edge. We therefore affirm.


The events leading up to the sanction are chronicled in four successive rescripts of the district court, see Maine Audubon Society v. Purslow, 672 F.Supp. 528 (D.Me.1987) (order dismissing complaint); Maine Audubon Society v. Purslow, No. 87-0297 (D.Me. Oct. 18, 1989) (order allowing Rule 11 motion); Maine Audubon Society v. Purslow, No. 87-0297 (D.Me. Dec. 14, 1989) (order fixing penal amount); Maine Audubon Society v. Purslow, No. 87-0297 (Dec. 14, 1989) (order refusing reconsideration), and do not bear detailed reiteration. For our purposes, it suffices to cull out certain critical facts:

1. On September 4, 1987, plaintiff's attorney brought suit under the Endangered Species Act, 16 U.S.C. Secs. 1531-1544 (the Act), seeking to enjoin defendants, private citizens, from constructing a residential subdivision in a manner deemed harmful to the breeding habitat of a pair of American bald eagles. Counsel applied, ex parte, for a temporary restraining order (TRO).

2. The Act contains a 60-day waiting period, measured from the giving of a specified notice of intent to sue (Notice), before a party can bring a citizen's suit against a nonfederal actor. See 16 U.S.C. Sec. 1540(g)(2)(A)(i). Counsel sued in disregard of this requirement: the Notice had not been prepared and mailed until September 3, 1987 (the day before plaintiff's civil action was instituted).

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3. On their face, the pleadings did not hint at any problem respecting the waiting period. Rather, the complaint asserted that plaintiff gave the required Notice "[o]n October 3, 1987" 2 and that "[t]he requirements of 16 U.S.C. section 1540(g)(2)(A)(ii) and (iii) are met." Plaintiff's simultaneous filings, including a motion for TRO and a memorandum in support thereof, were similarly unrevealing. A fair reading of the initial set of papers left the unmistakable impression that notice was not in issue.

4. Although the decision to seek the TRO was made in some haste--virtually by definition, all such decisions are time-sensitive--there was ample room to have researched the Act's requirements carefully. The Society had become interested in the matter more than a month earlier and counsel had been centrally involved since that time. Moreover, the district court found, supportably, that no "exonerating emergency" existed on the day suit was started. Dist.Ct.Op. (Oct. 18, 1989) at 8. The...

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