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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 Endangered Species Act, 16 U.S.C.S. § 1531 et seq.
In April 1995, Richard Strahan ("Strahan") filed suit against Trudy Coxe, Secretary of the Massachusetts Executive Office of Environmental Affairs, John Phillips, Commissioner of the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement, and Philip Coates, Director of the Massachusetts Division of Marine Fisheries (together "defendants"), claiming that these Massachusetts state officers were violating the federal Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and the Marine Mammals Protection Act ("MMPA"), 16 U.S.C. § 1361 et seq. Strahan sought a preliminary injunction ordering the Commonwealth to revoke licenses and permits it had issued authorizing gillnet and lobster pot fishing and barring the Commonwealth from issuing such licenses and permits in the future unless it received "incidental take" and "small take" permits from the National Marine Fisheries Service ("NMFS") under the ESA and MMPA. Defendants moved to dismiss Strahan's complaint and, in the alternative, for summary judgment. On September 24, 1996, the district court: (1) denied defendants' motion for summary judgment on Strahan's ESA claims; (2) dismissed Strahan's MMPA claims; and (3) granted summary judgment on Strahan's ESA claims in Count IV of Strahan's amended complaint. Strahan v. Coxe, 939 F. Supp. 963 (D. Mass. 1996). In this ruling, the district court declined to grant the preliminary injunctive measures sought by Strahan. Instead, the court issued a preliminary injunction ordering defendants to: (1) "apply for an incidental take permit [under the ESA] from NMFS . . . for Northern Right whales"; (2) "apply for a permit under the [MMPA] for Northern Right whales"; (3) "develop and prepare a proposal . . . to restrict, modify or eliminate the use of fixed-fishing gear in coastal waters of Massachusetts listed as critical habitat for Northern Right whales in order to minimize the likelihood additional whales will actually be harmed by such gear"; and (4) "convene an Endangered Whale Working Group and to engage in substantive discussions with the Plaintiff [Strahan], or his representative, as well as with other interested parties, regarding modifications of fixed-fishing gear and other measures to minimize harm to the Northern Right whales." Defendants appealed the district court's preliminary injunction order. Plaintiff Strahan cross-appealed 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.
Did the the district court err in holding that the regulatory scheme constituted a taking under the ESA?
The court ruled that the district court properly held that the regulatory scheme constituted a taking under the ESA. The district court's conclusion was correctly based upon two provisions of the ESA read in conjunction, 16 U.S.C.S. §§ 1538(a)(1)(B), 1538(g). The court further upheld the preliminary injunction directing appellant to determine how to alter its regulations to protect the whales, including formation of a working group. However, the court vacated the portion of the preliminary injunction that was based upon the Marine Mammals Protection Act, 16 U.S.C.S. § 1361 et seq., finding that the district court lacked jurisdiction to order compliance with the statute. The court rejected appellee conservationist's claims under U.S. Const. amends. X, XI, as well as the request for a permanent injunction. The judgment was affirmed, in part, and one portion of the preliminary injunction was vacated.