Chapter II — Species of Special Concern 



on 20 May 1997. The court noted that the govern- 

 ment's actions to establish a take reduction team and 

 develop a take reduction plan to address right whale- 

 fishery interactions, classify the lobster fishery as a 

 category 1 fishery (see Chapter III), and issue ap- 

 proach regulations had rendered many of the 

 plaintiffs claims moot. As to the other claims, the 

 court ruled that the National Marine Fisheries Service 

 had adequately analyzed the cumulative impact of 

 Coast Guard operations and had used the best avail- 

 able scientific and commercial data in preparing its 

 biological opinion. The court also agreed with the 

 government that the Endangered Species Act does not 

 set time limits for implementing recovery plans or 

 specify their content. Nevertheless, it appeared to the 

 court that the Service was taking adequate steps to 

 implement its right whale recovery plan. 



On 3 November 1997 the plaintiff appealed the 

 district court's ruling. The U.S. Court of Appeals for 

 the First Circuit issued an unpublished decision in the 

 case on 16 July 1998 affirming the lower court ruling. 



Coates v. Strafian — This lawsuit was filed in 

 April 1995 alleging four separate violations of the 

 Endangered Species Act and the Marine Mammal 

 Protection Act by Massachusetts officials. Although 

 federal statutes were at issue, no federal agencies were 

 parties to that litigation. 



As discussed in previous annual reports, the district 

 court ruled in 1996 that the plaintiff had demonstrated 

 a sufficient likelihood that endangered whales are 

 periodically taken through entanglement with gillnets 

 and lobster gear in waters regulated by the state and 

 that no permit authorizing such incidental taking had 

 been issued by the National Marine Fisheries Service. 

 The court found that the state's continued licensing of 

 these fishing operations was likely to continue to 

 cause harm to endangered whales and violated the 

 Endangered Species Act. In the court's view, it was 

 irrelevant that the permitting of fishing gear by 

 Massachusetts was only an indirect cause of whale 

 entanglement. 



Consistent with these rulings, the court ordered the 

 defendants to apply to the National Marine Fisheries 

 Service for an incidental take permit for right whales 

 under the Endangered Species Act. The court also 



ordered the state to develop and submit a proposal to 

 restrict, modify, or eliminate the use of fixed fishing 

 gear in coastal waters of Massachusetts listed as right 

 whale critical habitat. 



The defendants appealed the ruling, claiming that 

 (1) state licensure of gillnet and lobster pot fishing 

 does not constitute a taking under the Endangered 

 Species Act, (2) Massachusetts should not be required 

 to restrict the use of this gear when it was allowed by 

 the National Marine Fisheries Service outside of state 

 waters, (3) it should be left to the National Marine 

 Fisheries Service, through its rulemaking authority, to 

 determine whether certain fishing activities should be 

 banned in critical habitat areas, and (4) the court 

 order violates the Constitutional division of authority 

 between federal and state governments. The plaintiff 

 also appealed the district court ruling, claiming that it 

 did not go far enough to protect right whales. 



In a 9 October 1997 ruling, the U.S. Court of 

 Appeals for the First Circuit affirmed the lower 

 court's ruling with one exception. It vacated the 

 ruling that required Massachusetts to apply for an 

 incidental take authorization under the Marine Mam- 

 mal Protection Act. The appellate court reasoned 

 that, because the district court had no jurisdiction to 

 consider plaintiffs claims under the Marine Mammal 

 Protection Act, it was not proper for the court to 

 require compliance with the Act's provisions. 



On 6 March 1998 Massachusetts petitioned the 

 U.S. Supreme Court to review the appellate court 

 ruling. The state asked the Supreme Court to consid- 

 er three issues: (1) whether state officials commit a 

 taking under the Endangered Species Act when they 

 issue regulations that do not eliminate all risk that 

 state-licensed fishermen might violate the Act; (2) 

 whether the Endangered Species Act violates the 

 Tenth Amendment if its taking prohibition applies to 

 the licensing of fishing operations in state waters that 

 might take listed species, and (3) whether the state 

 action of licensing fishermen is the proximate cause of 

 impermissible takings that might occur. 



As noted above, the federal government was never 

 a party to this lawsuit. Nevertheless, because of its 

 interest in the matter, the Supreme Court invited 

 federal officials to file a brief expressing the views of 



23 



