Maine Audubon Soc. v. Purslow, No. 90-1057

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA; SELYA
• Citation: 907 F.2d 265
• Decision Date: 06 July 1990
• Docket Number: No. 90-1057
• Parties: , 21 Envtl. L. Rep. 20,044 MAINE AUDUBON SOCIETY, et al., Plaintiffs, Appellants, v. Emery PURSLOW, et al., Defendants, Appellees. . Heard

Page 265

907 F.2d 265 16 Fed.R.Serv.3d 1264, 21 Envtl. L. Rep. 20,044 MAINE AUDUBON SOCIETY, et al., Plaintiffs, Appellants,
v.
Emery PURSLOW, et al., Defendants, Appellees. No. 90-1057. United States Court of Appeals,
First Circuit. Heard July 6, 1990.
Decided July 6, 1990.

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.

I

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).

Page 267

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 nesting season had ended; the eagles were gone; the threatened harm lacked any real immediacy; and in any event, the state attorney general was, as the Society's lawyer knew, considering immediate intervention. ³

5. The TRO hearing occurred on September 9, 1987. Counsel, appearing ex parte before the district judge, did not volunteer any information about the Notice or its likely debilitating effect on the suit. It was not until the court raised the issue that the attorney even acknowledged noncompliance with the statutory directive.

6. The district court refused to grant the TRO.

7. When defense counsel entered an appearance, he docketed motions to dismiss and for sanctions. After plaintiff served an amended complaint, the district court granted both motions. First, it found the notice requirement to be mandatory and jurisdictional, 672 F.Supp. at 529-30, and dismissed the suit for want of proper notice. Id. Subsequently, the court levied the sanction because of the way in which counsel had broached--or failed to broach--the notice requirement during the early stages of the proceeding.

8. After the Society and its lawyers appealed, defendants, presumably because of the relatively modest amount in controversy, declined to file a brief. Consequently, we heard oral argument only on appellants' behalf. See Fed.R.App.P. 31(c).

II

It is by now apodictic...