
USCA1 Opinion

	




                            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 & 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  & Nat.                                ___ ______    _____________________________          Res., 852 F.2d 1106,  1110 (9th Cir. 1988) (upholding  injunction          ____          ordering state to remove all  sheep maintained by state in Palila          habitat  because habitat destruction  by the sheep  resulted in a          taking of  the Palila);  Palila v. Hawaii  Dep't of  Land &  Nat.                                   ______    ______________________________          Res., 639 F.2d 495, 497-98 (9th Cir. 1981) (holding that Hawaii's          ____          maintenance of feral  sheep and goats that  destroyed the habitat          of an endangered species violated the ESA because  the endangered          species was  threatened by  the continuation  of that  activity);          Loggerhead Turtle v.  County Council of Volusia  County, Florida,          _________________     __________________________________________          896  F. Supp.  1170,  1180-81  (M.D.  Fla.  1995)  (holding  that          county's  authorization  of  beach   access  to  vehicles,  which          disrupted the habitat of endangered species, resulted in a taking          in violation of  the ESA); see also Defenders of Wildlife v. EPA,                                     ________ _____________________    ___                                         -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 &  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-
