

                  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

                                           

                               -2-

          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)

                               -3-

"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 &amp; n.6.  Strahan                                      

                               -4-

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,

                               -5-

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

                               -6-

          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

                               -7-

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

                               -8-

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

                               -9-

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

                               -10-

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

                               -11-

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

                               -12-

          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

                               -13-

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

                               -14-

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

                               -15-

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.

                               -16-

          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.                                                                  

                               -17-

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

                               -18-

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

                               -19-

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

                               -20-

          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.

                               -21-

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  &amp; 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 &amp;  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,                                                                          

                               -30-

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 &amp;  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                                      

                               -42-
