Petition for Writ of Certiorari — Coates v. Strahan

C\ FILED

is

OTLASSmRée we

No. 97-

IN THE

Supreme Court of the United States

OCTOBER TERM 1997

PHILIP COATES, DIRECTOR OF THE

MASSACHUSETTS DIVISION OF MARINE FISHERIES, ET AL..

Petitioners,

RICHARD MAX STRAHAN,

Respondent.

PETITION FOR A WIRT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SCOTT HARSHBARGER

Attorney General

of Massachusetts

SALVATORE M. GIORLANDINO

DOUGLAS H. WILKINS*

Assistant Attorneys General

1 Ashburton Place, Room 2019

Boston, Massachusetts 02108

(617) 727-2200, ext.2068

*Counsel of Record

Uap So ee a Si eR NRA RR RARE ARI RRR NR ERE ARO PANS RN

Ly

ISSUES PRESENTED.

1. Whether state regulatory officials commit a “taking”

under the federal Endangered Species Act (“ESA” or “the Act”)

by enacting and enforcing regulations that protect endangered

whales in some ways, but do not eliminate all risk that private,

state-licensed fishermen might violate the ESA.

2. Whether, if construed to make state regulators liable for

such decisions, the ESA violates the Tenth Amendment to the

United States Constitution and constitutional principles of

federalism, as most recently construed in New York v. United

States, 505 U.S. 144 (1992), and Printz v. United States, 117

S. Ct. 2365 (1997).

3. Whether, in a case against state regulatory officials, the

proximate cause requirement of the ESA (Babitt v. Sweet Home

Chapter of Communities for a Greater Oregon, 515 U.S. 687

(1995)) is met by showing that the State licenses private actors

who may proceed to violate the ESA in contravention of both

state and federal law.

PARTIES TO THE PROCEEDING.

The plaintiff is Richard Max Strahan. The defendants are

Philip Coates, Director of the Massachusetts Division of Marine

Fisheries ("DMF"); Trudy Coxe, Secretary of the

Massachusetts Executive Office of Environmental Affairs

("EOEA"); and John Phillips, Commissioner of the

Massachusetts Department of Fisheries, Wildlife, and

Environmental Law Enforcement (the “Department"). The

Conservation Law Foundation, Inc. appeared and argued as

amicus curiae in support of the plaintiff in both the District and

Circuit Courts.

Table of Contents.

ISSUES PRESENTED

PARTIES TO THE PROCEEDING

Sa oe apemeee.. «ee EF. i

Bee CO MUTMOEEES ww... cece iii

OPINIONS cn pi PRR pay Car ge eens Soe 2

PES os eee oe 2

STATUTORY PROVISIONS INVOLVED ......... 2

STATEMENT OF THE CASE ................. 4

Ee PE os oh a ee 4

We ee Bs ie ce reek 10

A. Federal Enforcement of the ESA

off the Massachusetts Coast. ........... 10

B. Massachusetts’ Protective Regulatory

RS ask ee ee 12

ii

AISI rs a Sw ES CUA EEO OOD 15

A. The Decision Below Conflicts with New York and

Printz by Finding a Federal Violation In the

Alleged Failure of a State to Take Additional

Regulatory Measures Purportedly Required by

Frodavul Ts a a a wR 16

B. Tne Panel’s “State Authorization” Theory Raises

Issues of National Importance and Conflicts with

Naw Fare Ge BN oa o's ses he 5 eka VG 21

C. The Panel’s “Common Law Causation” Theory

Conflicts with Sweet Home, as well as New York

and Pe a ee bs CSR ee RS 25

CONCT ARIE. eS i ce ee 29

lil

Table of Authorities.

Cases.

Acorn v. Edwards,

81 F.3d 1387 (Sth Cir. 1996),

cert. denied sub. nom.

Acorn v. Foster,

iad MRE IOUT) ox oy 6 a oy oo 17, 19, 20n

Babbitt v. Sweet Home Chapter of

Communities for a Greater Oregon,

Waal ee OT COP ks ee 16, 20, 25,

26, 28

Brochu v. Ortho Pharmaceutical Corp. .,

en ee Ora te Ce, 108)... 28

Defenders of Wildlife v. EPA,

Sree terran te, 1900). 27n

Edward J. DeBartolo Corp. v. Florida Gulj

Coast Bldg. & Const. Trades Council,

RP I 20

Ex Parte Young,

EEO ee cee fe 23n

iV

FERC v. Mississippi,

656: US. Fee Ce ES 8 i i ee as 24n

George v. New Jersey Board of

Veterniary Medical Examiners,

635 F. Supp. 953 (D.N.J. 1985)

aft'G 794. F236 439 GG Gal, TFGR) iw nos os om 26n

Haddock v. Board of Dental

Examiners o7 California,

TET Sk AD 95 oe Ea es oes 26n

Hines v. Davidodwitz,

She ice ee MAE Fe ois Biko ck A Mes Oo 25n

Int’l Paper Co. v. Ouellette,

Nae ie BOR AIOOTS chee eee eis aa 25n

King v. Pace,

37a Wr. ome. 13505 GC. Mass, TS) ove eck 26

Loggerhead Turtle v.

County Council of Volusia County,

896 F. Supp. 1170 (M.D. Fla. 1995)........... 27n

MacDonald v. Ortho Pharmaceutical Corp.,

394 Mass. 131, 475 N.E. 2d 65,

cert. denied,

RPG ALD. Dae COE 6 oe ee ee 28

National Wildlife Federation v.

National Park Service,

669 F. Supp. 384 (D. Wyo. 1987) ............ 25

New York v. United States,

a Shi BOO CRED 6 re Ns ow eek es 9. 35. 2722,

24, 25

Osterlind v. Hill,

263 Mass. 73,

SOE Pe Ue CRIS 6 Kc OE BW iw 2 We 27

Palila v. Hawaii Dept. Of Land

and Nat. Resources,

Gon Pia re cee Got. EPO)) i koe oh ee 8, 27n

Palila v. Hawaii Dept. Of Land

and Natural Resources,

852 F.2d 1106 (9th Cir. 1988) .......... 9, 16, 27n

Palsgraf v. Long Island RR. Co..,

248 N.Y. 339,

Ue I og re oo 26

Printz v. United States,

S57 ee Ss ee CRE chins hc eee 9, 15, 17-22, 25

Pyramid Lake Paiute Tribe v.

Department of the Navy,

re Fee Bre Cr Or. IGF) ik ks 6 vine ow eee os 25

vi

Sierra Club v. Yeutter,

526 F208 Gan Coe ea. Se) ok ee ER 27n

Strahan v. Coxe,

939 F. Supp. 963 (D. Mass. 1996) ........... 2, 9n

Strahan v. Coxe,

S27 FS, BS Ue Ga re). hn oe ES ees 2

Strahan v. Linnon,

967 F. Supp. 581 (D. Mass. 1997) ............ 14

Toomer v. Witsell,

9 RIT Bh oy, : pe rere tr ee 24n

Tyler v. Vickery,

517 F.2d 1089 (Sth Cir. 1975),

cert denied, 426 U.S. 940 (1976) ............. 26n

Woodward v. Virginia Board of Bar Examiners,

420 F. Supp. 211 (E.D. Va. 1976),

aff'd 598 F.2d 1345 (4th Cir. 1979) ........... 26n

Massachusetts Statutes.

iets. Chak, ble CG. taer 6 Boe eee ere eee es 5n

Sins. Gee Tee &. ISIA, SiS OSES IAN 21n

Beene: Gee. Lawes C. IFEA SHS i SS Ae Ti 12, 23

peneh. Ot. Boos G. SOROS By aaa 12

Massachusetts Rules and Regulations.

we Ry B76 Se eR a 12

WOM a OMI 8 0 he kok Mn eo he cba Oa) 13

SPE MC PURBIED 6 kf Cie ok es ew SER ES 13

Se Es ee sb ke ee Be 6n

Se ONE © ob Ce bis se ba cba es 13

pee See © 12.00 = 12.05 (1993)... 5 ee ce ce 23

Jae Gs @ A208 = 12.05 C985) ow. ek ee ck 12n

Federal Constitutional Provisions.

Le GANG y POU wk ec ewe eae wiele 23n

U.S. Const., 10th Amendment ............. zs wea?

23n, 27n

Federal Statutes.

PE Sfp et MOORE 6 ERs Co OR no we ee es 10

i et

viii

meter sii oo a ee lin

USC Sree. 6 oo 3

16 UR RANBIR oo ee eh 10

et Wi ee 3

be Oe a 3

ie ee CN ce es Se. 3

muke cies... li

mar Wiley 19

Wee bee eS 2

Rk NAA os aa, 2

wee C6 a 5

ibe Saami ee, 2

eukh eae a ee 26

Title VII of the Civil Rights Act of 1964 ........... 26

Federal Regulations.

we PS 37S OIG) 8 is PEC oe 3, 16

Incidental Take of Endangered, Threatened

and Other Depleted Marine Mammals,

a4 FOG Reg. W558 eee 6 Si oes Ce 10

So POR. MOE. 20,799 CLIPS) 66 SA FOP. 10, 12

oF Fed. Ree. 20,791-6 QI) ees as 10

Je Fed. Reg. 26, 796-G04 (1994) os Pe SS 10

ees: Fn. Be LEE Pe Ve wk ON etree woh 12

oe eee, ee. 26.508 CIPO) be oe ea Fy Gia ae

Be RT CN: GOA SANGO) oS Rs SA 12n

Pe a, tne CRUD ow ek oe SA Pe aS 12n

Taking of Threatened or Endangered Marine

Mammals Incidental to Commercial

Fishing Operations; Interim Permit,

60 Fed. Reg. 45399 (August 31, 1995) ......... lin

61 Fed. Reg. 64500 (December 5, 1996) .......... 7n

61 Fed. Reg. 64501 (December 5, 1996) .......... 7n

iii |

X

61 Fed. Reg. 64503 (December 5, 1996) .......... 7n

62 Fed. Reg. 5385 (February 5, 1997) ............ 7n

62 Fed. Reg. 5386 (February 5, 1997) ............ 7n

62 Fed. Reg. 15425 (April 1, 1997) .. 2... ees 14n

¢ d. Reg. 16108 (April 4, 1997)». . 2... 0.6... 15n

G2 Fed. Reg. 16789 (April &, 1997) . oo ns. ees 7n

North Atlantic Northern Right Whale

Protection; Interim Final Rule,

62 Fed. Reg. 21562 (April 25, 1997) .......... 12n

Miscellaneous.

Declaration of Independence... 2... ke 23n

The Federalist Papers,

Seek bas ae CD css VA ad Oe Re ee 24

Quarles,

“Sweet Home and the Narrowing of

Wildlife ‘Take’ Under Section 9 of

the Endangered Species Act”,

26 ELR 10003, Gammary; 1996)...5. oe ee 25

Restatement of Torts, Second, § 431 ............. 26

Stern & Gressman,

Supreme Court Practice,

See. Se Coe es Se ss ewe ce Be Se es 16

SUCCES COUN REE PAD) 0 ws ew ee ee aes 2

No.

IN THE

Supreme Court of the United States

OCTOBER TERM 1997

PHILIP COATES, DIRECTOR,

MASSACHUSETTS DIVISION OF MARINE FISHERIES, ET AL.,

Petitioners,

RICHARD MAX STRAHAN,

Respondent.

PETITION FOR A

WRIT OF CERTIORARI

The defendants, Philip Coates, Director of DMF; John

Phillips, Commissioner of the Department; and Trudy Coxe,

Secretary of EOEA (collectively the "defendants") petition for

a writ of certiorari to review the judgment of the United States

Court of Appeals for the First Circuit.

So) ont ee ete ene

2

OPINIONS BELOW.

The opinion of the United States Court of Appeals for the

First Circuit is reported at 127 F.3d 155 (1997) and is

reproduced as Appendix A (“App. A”) hereto. The decision of

the United States District Court for the District of

Massachusetts is reported at 939 F. Supp. 963 (1996) and is

reproduced as Appendix B (“App. B”) hereto.

JURISDICTION.

The judgment of the United States Court of Appeals for the

First Circuit was entered on October 9, 1997, and rehearing

was denied on December 8, 1997. App. A-1; C-1. Petitioners

invoke the jurisdiction of this Court under 28 U.S.C. § 1254(1).

The First Circuit Court of Appeals had jurisdiction pursuant to

28 U.S.C. § 1292(a)(1). Section 2403(a) of 28 U.S.C. may

apply, and the notification required by Supreme Court Rule

29.4(b) has been made.

STATUTORY PROVISIONS INVOLVED.

U.S. CONSTITUTION AMENDMENT X .

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.

16 U.S.C. § 1532(19) (1986).

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.

16 U.S.C. § 1538(a) (1).

Except as provided in sections 1535(g)(2)

and 1539 of this title, with respect to any

endangered species of fish or wildlife listed

pursuant to section 1533 of this title it is

unlawful for any person subject to the

jurisdiction of the United Staters to --

(B) take any such species within the United

States or the territorial sea of the United States[.]

16 U.S.C. § 1539(a)(1).

The Secretary, may permit, under such terms

and conditions as he shall prescribe --

(B) any taking otherwise prohibited by

section 9(a)(1)(B) [16 U.S.C. § 1638(a)(1)(B)] if

such taking is incidental to, and not the purpose

of, the carrying out of an otherwise lawful

activity.

50 CFR § 17.3 (1994).

Harm in the definition of ‘take’ in the Act

means an act which actually kills or injures

4

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.

STATEMENT OF THE CASE.

1. Procedural History.

Richard Max Strahan (“Strahan”) originally filed suit on

April 21, 1995, and sought a preliminary injunction: (1)

ordering agencies of the Commonwealth of Massachusetts

(“Commonwealth”) to revoke all previously issued licenses and

permits authorizing gill net and lobster pot fishing; and (2)

barring the Commonwealth from issuing any 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 Marine Mammal Protection Act

(“MMPA”). App. B-4 to 5.' The District Court had

' As later amended, the Complaint contains four counts. App.

B-4 n.7. Count | claims that the Commonwealth violates

Section 9 of the ESA because its "licensing and regulation of

fishing gear in Massachusetts coastal waters allegedly results in

incidental takings of Northern Right whales without a permit."

Id. Count II claims that the Commonwealth's "licensing of

gillnets and lobster gear in the NMFS-designated critical habitat

of Massachusetts Bay is an impermissible modification of that

habitat." Jd. Count III claims that the Commonwealth violates

Section 103 of the MMPA because its licensing and regulation

2

5

jurisdiction over this case pursuant to 28 U.S.C. § 1331. The

Conservation Law Foundation (“CLF”) has participated in

briefing and oral argument as amicus curiae in the District

Court and the Court of Appeals at all significant phases of this

litigation, supporting what it views as “an attempt to force

officials of the Commonwealth of Massachusetts to adopt

measures to protect several types of whales,” including right

whales. Ist Cir. Appendix (“R.A.”) 179.

On September 24, 1996, over the defendants’ objection, the

District Court entered a preliminary injunction, “with a view

toward developing additional protective measures” for the

Northern Right Whale and other endangered whales. App. B-69

to 74. The Court ordered the defendants to: (1) “apply for an

incidental take permit from NMFS [under the ESA] on or before

October 18, 1996, . . . for Northern Right whales”; (2) “apply

for a [small take] permit under the [MMPA] on or before

October 18, 1996, . . . for Northern Right whales”; (3)

“submi[t] to the court on or before December 16, 1996, [a plan]

to restrict, modify or eliminate the use of fixed-fishing gear in

coastal waters’ of Massachusetts listed as critical habitat for

of fishing gear in Massachusetts coastal waters "allegedly

results in the entanglement of Northern Right whales in fishing

gear." Jd. Count IV claims that the Commonwealth authorizes

whale-watching activities in violation of Section 9 of the ESA.

Id.

* Massachusetts "coastal waters" are "all waters of the

commonwealth within the rise and fall of the tide and the marine

limits of the jurisdiction of the commonwealth," Mass. Gen.

Laws c. 130, § 1, and within "three geographical miles from the

6

Northern Right whales”; and (4) “convene an Endangered

Whale Working Group 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.” Jd. The District Court declined to enjoin the

Commonwealth's licensure of gill net and lobster pot fishing.

On October 1, 1996, the defendants appealed fr.m the

District Court's preliminary injunction. R.A. 249-52.

In October, 1996, the defendants applied for permits from

NMFS under the ESA and MMPA for the incidental take of

Northern Right Whales in Massachusetts coastal waters and

nominated members to the District Court's Endangered Whale

Working Group pursuant to par. 4 of the District Court's

preliminary injunction. R.A. 274-75. On October 29, 1996,

the District Court entered an order designating the members of

the Working Group. R.A. 293A-B.

On November 4, 1996, Strahan moved for contempt against

the defendants contending that their October 17, 1996 incidental

take application to NMFS was a "sham" and violated paragraphs

1 and 2 of the District Court's preliminary injunction. R.A.

shoreline." 322 Code Mass. Regs. § 8.02. No one may engage

in commercial fishing activities in Massachusetts coastal waters

unless they are licensed by the Commonwealth's Division of

Marine Fisheries. R.A. 32-50.

> Strahan also appealed from the preliminary injunction on

October 18, 1996. R.A. 19.

iliac

298-314. ¢

The District Court's Working Group met in November and

December, 1996. R.A. 362-404. As a result of the Working

Group's meetings, the defendants, on December 16, 1996,

submitted a plan to the District Court pursuant to par. 3 of the

District Court's preliminary injunction. The District Court did

not enter further orders, but retained oversight authority over

the Commonwealth's regulatory efforts and measures.

After all parties filed notices of appeal from the September

24, 1996 preliminary injunction ruling, the Court of Appeal. for

the First Circuit issued a decision on October 9, 1997, affirming

the District Court in relevant part. See App. A. The Court of

Appeals agreed with the District Court “that a governmental

* On November 29, 1996, NMFS issued a notice

acknowledging its receipt of the Commonwealth's October

17, 1996 incidental and small take permit application and

inviting public comment on the application. R.A. 340-61; 61

Fed. Reg. 64500 (December 5, 1996). In doing so, NMFS

restated its earlier policy statement of May 28, 1996 that “it

was unnecessary and inappropriate for Massachusetts to

apply” for such permits, but invited public comments on its

position. 61 Fed. Reg. at 64503. No comments were

received during the public comment period, which ended on

January 6, 1997. 61 Fed. Reg. at 64501; 62 Fed. Reg. 5385,

5386 (February 5, 1997).

On January 28, 1997, NMFS reaffirmed its policy

statement, See 1st Cir. Supplemental Record Appendix

(“SRA”) 1-2, and made that statement final on February 5,

1997, see 62 Fed. Reg. at 5385-86. NMFS restated its policy

position again on April 8, 1997. See 62 Fed. Reg. 16789

(April 8, 1997).

8

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.” App. A-16, citing, inter

alia, Palila v. Hawaii Dept. of Land and Nat. Resources, 639

F.2d 495, 497-98 (9th Cir. 1981)(“Palila I”). It rejected the

defendants’ argument that their regulatory scheme did not

proximately cause private actors to violate the ESA, holding that

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.” App. A-17 to 18. It likewise disagreed with the

defendants’ position that it should defer to NMFS or recognize

that additional regulation, if mandated by the ESA, should come

from NMFS. App. A-18 to 19. Finally, it rejected the

defendants’ factual arguments, because, among other things, the

“evidence of the significant efforts made by the Commonwealth

to ‘minimize Northern Right Whale entanglements in fishing

gear’. . . [is] irrelevarit” as long as there was evidence of whale

entanglements and of at least “a single injury to one whale.”

App. A-21 to 22.°

* The decision below states that “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.” App. A-17. The

District Court did not make this assertion, and there is no

support in the record for it. On the contrary, the lower court

found (and the First Circuit. affirmed) “that the

Commonwealth’s probable violation of the ESA could be

curtailed without such extreme measures” as halting fixed gear

fishing. App. A-37. Consistent with this conclusion, the panel

upheld the lower Court’s finding that “northern right whales are

9

Viewing the defendants’ Tenth Amendment arguments as

relating primarily to remedy, the Court rejected an analogy to

New York and Printz because it believed that two distinguishing

facts existed. First, it believed that there was a statutory

violation in this case, unlike in the other two cases. App. A-26

to 27, 32 to 33, citing, inter alia, Palila v. Hawaii Dept. Of

Land and Natural Resources, 852 F.2d 1106 (9th Cir.

1988)(“Palila IT’). Second, the States in those cases were

directed “to take positive action with respect to a particular

field” while, here, the defendants were directed “to find a

means of bringing the Commonwealth’s scheme into compliance

with federal law.” App. A-33. It also argued that the

Commonwealth could be put to a choice of regulating according

to ESA standards or having its regulations —— by the

ESA and regulations. Jd.

rarely seen in Cape Cod Bay after May 15.” App. A-37,

affirming 939 F. Supp. at 968. Cf. App. A-5 (NMFS proposes

banning fixed gear in the Cape Cod Bay Critical habitat only

from January 1 to May 15 and in the Great South Channel only

from April 1 to June 30 of each year).

10

2. FACTS.

A. Federal Enforcement of the ESA off the

Massachusetts Coast.

The United States Secretary of Commerce (the "Secretary"),

through NMBS, is responsible for enforcing the ESA with

respect to endangered species of marine mammals. Incidental

~ Take of Endangered, Threatened and Other Depleted Marine

Mammals, 54 Fed. Reg. 40,338 (1989); see also 16 U.S.C.

§ 1362(12); App. B-18 The ESA authorizes NMFS to

promulgate regulations designating critical habitats of

endangered species. 16 U.S.C. § 1533(a)(3).

On June 3, 1994, NMFS designated portions of Cape Cod

Bay as a critical habitat for the Northern Right Whale. 59 Fed.

Reg. 28,793, 28,797-8 (1994). Portions of Massachusetts

coastal waters are located in Cape Cod Bay. R.A. 184A. The

designation, however, banned neither whale watching, nor

commercial fishing activities in the area, nor the use of gill nets

or other fishing gear. 59 Fed. Reg. 28,798-804 (1994).

[The critical habitat] designation contains no land

use or fishing regulations, and will not directly

affect private activities . . . If, in the future,

NMFS determines that restrictions on human

activities are necessary to protect northern right

whales or their habitat, such action would be

preceded by an opportunity for public review

and comment.

59 Fed. Reg. 28,804.

Notwithstanding the ESA's prohibitions, NMFS “may

11

permit . . . any taking otherwise prohibited by [the ESA] if such

taking is incidental to, and not for the purpose of, the carrying

out of an otherwise lawful activity.” 16 U.S.C. § 1539(1)(B).°

Currently, NMFS has no_ regulations requiring the

Commonwealth to apply for an incidental take permit prior to

licensing any type of commercial fishing in its coastal waters.

On May 28, 1996, NMFS advised the Commonwealth that:

when appropriate, [NMFS] will issue incidental

take authority for commercial fishing operations

to individual fishermen . . . [I]t is inappropriate

and unnecessary for the Commonwealth to apply

for [such] a permit.

R.A. 205-6.’ It also advised the Commonwealth that “it does

not anticipate issuing any incidental take [permits] . . . with

respect to right whales.” /d.*

° NMFS may also issue "small take" permits under the

MMPA that authorize "the incidental taking . . . of marine

mammals in the course of commercial fishing operations."

16 U.S.C. § 1374(a).

7’ See above, p. 7 n. 4.

® In August, 1995, NMFS published a notice in the Federal

Register that it would not issue incidental take permits for

Northern Right whales because it could not find that

incidental takings of these whales would have a negligible

impact on their survival. Taking of Threatened or

Endangered Marine Mammals Incidental to Commercial

Fishing Operations; Interim Permit, 60 Fed. Reg. 45399

12

B. Massachusetts’ Protective Regulatory

Measures.

Massachusetts has long made it illegal to take any federally

listed endangered species. Mass. Gen. Law c. 131A, § 2,

added by Mass. St. 1990, c. 408, § 4. Northern Right Whales

are listed as endangered species under state marine fisheries

law. 321 Code of Mass. Regs. § 10.60. See R.A. 143.

In addition, the Commonwealth has a long history of

regulatory measures designed to protect the Northern Right

Whale. R.A. 144-49, 184-184A. NMFS' critical habitat

designation "recognizes and appreciates the efforts of the

Commonwealth of Massachusetts to protect the Northern Right

Whale." 59 Fed. Reg. 28,793, 28,801 (1994).

The Commonwealth's measures to protect Northern Right

Whales include: (1) establishment of a 500 yard buffer zone

between Right Whales and fishing vessels;* (2) distribution of

educational information to licensed commercial fishermen and

(August 31, 1995). NMEFS repeated its position on

November 29, 1996. R.A. 350.

° See 322 Code of Mass. Regs. § 12.01-12.05 (1993). There

was no federal buffer zone for whales at the time

Massachusetts adopted this measure. R.A. 36-7. On

December 27, 1994, NMFS proposed adopting a 500 yard

“protection zone" around every Northern Right Whale and a

100 yard "protection zone" around other whales. 59 Fed.

Reg. 66,513, 66,514 (1994). NMFS has now adopted the

proposal as a regulation. See North Atlantic Northern Right

Whale Protection; Interim Final Rule, 62 Fed. Reg. 21562

(April 25, 1997)

13

owners of Massachusetts registered boats on the importance of

identifying, avoiding, and reporting entanglements of Northern

Right Whales; (3) requesting agencies with jurisdiction over

ocean dumping activities to recognize the impacts of such

activities on Northern Right Whales in identified high use areas

within Cape Cod Bay; and (4) encouraging and supporting

NMFS' designation of the Cape Cod Bay critical habitat in

1994. R.A. 145-46, 184-84A.

The Commonwealth has specifically limited the potential for

Right Whale entanglements in fishing gear. R.A. 147,

184-84A. In 1992, the Department adopted regulations that

prohibited the use of more than 80 pots by coastal lobster pot

fishermen at a given time. See 322 Code Mass. Regs.

§ 6.13(2). In the same year, the Department also imposed a

moratorium on the issuance of new sink gill net regulated

fishery permits. See 322 Code Mass. Regs. § 8.10(4).

The Commonwealth also established a moratorium on the

issuance of new coastal lobster fishing permits, See 322 Code

Mass. Regs. § 6.13(2), and banned the use of sink gill nets in

all Massachusetts coastal waters: (a) south of Boston during the

month of March, when whales usually migrate to the area to

feed; (b) north of Cape Ann during the month of November:

and (c) south of Cape Cod from April to November 15. See

322 Code Mass. Regs. § 4.08(2). In March, 1996, it initiated

a program of weekly surveillance flights over the Cape Cod Bay

critical habitat, with the assistance of the United States Coast

Guard's Air Wing at Otis Air Force Base, from January to

April of each year for the purpose of spotting Northern Right

Whales and Northern Right Whale entanglements in fishing

gear, and reporting such sightings to the Center for Coastal

tt

Studies. R.A. 146-47. The Department is also formulating

plans to circulate information on Northern Right Whale

sightings to all Massachusetts Harbor Masters and ultimately to

fixed gear fishermen, through a joint program with NMFS. /d.

In January, 1997, in response to the District Court’s

preliminary injunction, the Commonwealth adopted additional

regulations. In a related case brought by the same plaintiff

against NMFS and the Coast Guard, the same District Judge

stated that “the Commonwealth needed some encouragement to

develop its policies in this area under the ESA” and claimed

credit for the Commonwealth’s new regulatory measures, which

he stated were adopted “under prodding from this Court.”

Strahan v. Linnon, 967 F. Supp. 581, 606 (D. Mass. 1997).

The 1997 Massachusetts regulations (1) banned all gill net

fishing in all Massachusetts coastal waters listed as critical

habitat for Northern Right Whales from January 1 through May

15 of each year, the period when Northern Right Whales are

usually present in the area; and (2) limited lobster pot fishing in

the area during the same time period to individuals deploying

“break away” gear or other similar gear designed to allow a

Northern Right Whale to break free frornm lobster pot fishing

gear with relative ease. R.A. 362-69, 405-7.'° In May, 1997,

'© NMFS followed the Commonwealth’s lead on April 1, 1997,

by issuing a rule closing Federal waters to vessels fishing with

sink gillnet gear and other gillnet gear in Cape Cod Bay from

March 27 to May 15, 1997, and from January 1 to May 15 in

subsequent years. 62 Fed. Reg. 15425, 15426 (April 1, 1997).

On April 4, 1997, NMFS issued an emergency interim rule

implementing restrictions on the use of lobster pot gear in the

15

the Commonwealth adopted a surveillance-based manage nent

plan for Northern Right Whales and adopted a policy pursuant

to which the Commonwealth’s EOEA Secretary would issue an

annual report by October 15th of each year: (1) analyzing the

effectiveness of Commonwealth’s regulatory measures designed

to protect Northern Right Whales; and (2) proposing any

regulatory changes. R.A. 411-12.

The "Defendants do not place gill nets and lobster gear in

[Massachusetts] coastal waters." App. B-39.

ARGUMENT.

The First Circuit’s decision in this case conflicts with this

Court’s decisions in New York v. United States, 505 U.S. 144

(1992); and Printz v. United States, 117 S.Ct. 2365 (1997). In

particular, the First Circuit has violated the principle that “The

Federal Government may not compel the States to enact or

administer a federal regulatory program.” New York, 505 U.S.

at 188. The ruling in this case is particularly egregious,

because it seeks to compel Massachusetts to work toward

enacting additional regulatory measures that NMFS, the

responsible federal agency, had declined to enact. This ruling

also raises issues of national impo: ‘ance regarding the roles of

the States and all three branches of the Federal Government.

including the question whether the Federal Courts may impose

affirmative regulatory obligations, not upon federal executive

Cape Cod Bay Right Whaie critical habitat from April 1 to May

15, 1997. 62 Fed. Reg. 16108 (April 4, 1997).

16

agencies, but upon the States, based solely upon alleged

shortcomings in state regulation, when compared with the ESA.

The First Circuit’s decision also goes well beyond notions

of proximate causation inherent in the federal ESA and its

regulations. See Babbitt v. Sweet Pome Chapter of

Communities for a Greater Oregon, 515 U.S. 687, 696 n.9, 700

n.13, 709-714 (1995); 50 C.F.R. § 17.3. While the majority in

Sweet Home did not reach the issue, it appears that at least four

Justices have rejected the broad proximate causation theory

embraced by the Circuit Court. See 515 U.S. at 709-714

(O’Connor, J., concurring)(questioning Palila I); 515 U.S. at

714-36 (Scalia, J., dissenting, joined by Rehnquist, C.J. and

Thomas, J.).

Accordingly, the Court should grant certiorari to review the

First Circuit’s decision. Despite the interlocutory nature of the

ruling below, this case presents several “important and clear-cut

issue[s] of law that [are] fundamental to the future conduct of

the case... .” Stern & Gressman, Supreme Court Practice,

§ 4.18, p. 196 (7th ed. 1993) and cases cited.

A. The Decision Below Conflicts with New

York and Printz by Construing a Federal

Statute to Require Additional State

Regulatory Measures.

The defendants here have done nothing more than exercise

State licensing and regulatory power over private economic

activity. There is no allegation that any aspect of their

regulations has placed endangered whales in greater jeopardy

than they would be without state regulation. Indeed, as

demonstrated at length above, the defendants have expressly

17

prohibited takings of endangered species and have enacted

regulations to protect whales. If they had done nothing, and

thereby lefi fixed gear fishing unregulated at the state level, they

would not be liable under the ESA. App. B-41. Their only

alleged omissions consist in declining to take additional state

regulatory measures.!! Nevertheless, holding that

Massachusetts’ “efforts to minimize [whale] entanglements are

irrelevant” (App. A-22) as long as any risk of taking existed,

the First Circuit found that “the Commonwealth’s regulation of

commercial fishing” violates the ESA. On this view, Congress

has made the States insurers against private ESA violations.

A federal obligation requiring a State to regulate to eliminate

all risk of private ESA violations cannot be grounds for liability

under the Act; otherwise, the ESA would violate the States’

reserved authority under constitutional principles of federalism,

including the Tenth Amendment to the United States

Constitution. New York v. United States, 505 U.S. 144 (1992):

Printz v. United States, 117 S. Ct. 2365 (1997). In New York,

this Court invalidated a federal statute requiring states to

regulate further or to take title to low level radioactive waste,

because “The Federal Government may not compel the States

to enact or administer a federal regulatory program.” 505 U.S.

at 188. Accord, Acorn v. Edwards, 81 F.3d 1387 (Sth Cir.

1996), cert. denied sub. nom. Acorn v. Foster, 117 S. Ct. 2532

'! Without judicial ability to impose such measures, Article III

standing would not exist here, because the Court would not be

able to redress alleged injury to whales. App. B-39 (alleged

violation is “redressable” “[i]f the Defendants were to limit

further or ban . . . the use of gillnets and lobster gear”).

18

(1997). In Printz, the Court struck down provisions of a statute

that imposed obligations upon local officials to take certain

actions holding that “Congress may not circumvem [the]

prohibition [of New York] by conscripting the State’s officers

directly.” 117 S. Ct. at 2379.

The fundamental conflict between the decision below and

New York and Printz lies in the lower court’s attempt to justify

federal control over state regulatory choices by characterizing

failure to regulate at the state level as a continuing federal

violation. The lower federal courts must not be permitted to

circumvent New York and Printz in this manner.

To be sure, the First Circuit did try to justify its departure

from New York and Printz. Its rationales must be rejected as

inconsistent with those decisions, however, because ultimately

the Court found liability only due to the supposed absence of

enough state regulations to achieve the ESA’s goals.”

The Circuit Court first attempted to avoid the rule of New

York and Printz by characterizing the State’s regulatory activity

here as a “continuing violation.” App. A-26 to 27, 31 to 33.

'2 This conclusion also follows from process of elimination.

The prohibition of state licensure and regulation cannot be the

ESA’s goal, because it would fail to “redress” the alleged

harm, and would, instead, cause greater jeopardy to

endangered species. The panei (App. A-18 n.3) expressly

disclaimed premising liability upon a theory that gillnets and

lobster pots must be banned by the State in areas where the

federal administering agency has chosen not to ban them.

The only remaining alternative is that the State is being held

liable for not regulating enough.

19

That characterization itself contravenes this Court’s decisions.

in Printz itself, for instance, Congress had attempted to make it

a federal criminal “violat[ion]” for a Sheriff to refuse to conduct

a background check in connection with sales of handguns. See

117 S. Ct. at 2369, citing 18 U.S.C. § 924(a)(5). The question

was whether Congress could do so, and this Court squarely held

that it could not. In New York itself, the State would have been

in violation of a congressional act by 1996 if it refused “to

administer the federal program.” 505 U.S. at 177. Neither

New York nor Printz makes the circular assertion, which the

First Circuit did, that a state is “in violation of a congressional

ac’” without deciding whether the relevant feature of the federal

act is constitutional.

The Circuit Court’s second ground for distinguishing New

York and Acorn (App. A-33) is that the “states in those cases

were directed to take positive action with respect to a particular

field.” This distinction, too, fails. Here, as shown above, the

defendants are being held liable for taking some, but not enough

licensing and regulatory measures with respect to a particular

ficld, namely the protection of federal endangered species. It is

true that the requirement in this case for more regulation does

not explicitly appear in so many words in the Act or the opinion

below, but the panel has now construed the ESA to contain such

a requirement as a matter of congressional mandate upon state

licensing and regulatory authorities. This construction, falls

squarely within the proscription against requirements to

“regulat[e] according to the instructions of Congress.” New

20

York, 505 U.S. at 175."

In truth, Congress meant for NMFS to decide whether

additional regulation was necessary. NMFS’s view, which the

lower courts have ignored, is that because the Commonwealth’s

role is regulatory it is “inappropriate and unnecessary” for it

even to apply for an incidental take permit. See above, p. 7,

n.4. See Sweet Home, 515 U.S. at 703 (Deference to federal

agency administering the ESA). Congress intended any such

regulation to originate from the Federal executive branch, not

the judiciary through orders to state agencies. The correct

construction of the ESA, which avoids constitutional conflict

with New York and Printz (see Edward J. DeBartolo Corp. v.

Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S.

568, 575 (1988)), is that state regulators are not liable when

some risk exists that the acts of private licensees may violate

federal law.

‘3 The lower court cannot excuse an unconstitutional basis for

imposition of liability on the State on the ground that there is,

as yet, no specific judicial order for regulatory action. Since

liability here was predicated upon failure to regulate enough, the

situation here closely resembles New York itself, where the State

challenged its liability under the federal act in a declaratory

judgment action, in which no relief at all had entered against the

State. Nor had relief entered against the states in Printz or

Acorn.

21

B. The Panel’s “State Authorization” Theory

Raises Issues of National Importance and

Conflicts with New York and Printz.

The Circuit Court’s opinion relies heavily upon the theory

that a State authorizes and may therefore be held liable for

illegal activity by issuing a license to private citizens to engage

in a use of fishing gear that can result in whale entanglements.

It characterizes the State as “a governmental third party

pursuant to whose authority an actor directly exacts a taking of

an endangered species... .” App. A-16. This conception of

state authorization raises fundamental questions regarding the

role of the States, as regulators, in relation to private

individuals’ independent obligations to comply with federal law.

It also raises basic issues regarding the nature of our political

systems and freedoms. The First Circuit’s “state authorization”

theory calls out for review by this Court in order to address an

issue of national importance and correct a further conflict with

New York and Printz.

If States, through their historic licensing and regulatory

powers, become federally liable for “authorizing” private

violations of Federal law, then numerous troubling

consequences may follow. Many state licensing functions could

be pressed into federal service by the Courts, with the goal of

inducing additional state regulations that the responsible federal

agencies have eschewed, as in this case. For instance, the First

Circuit’s rule would call into question the common sense

understanding that state licensure of firearms, including hunting

rifles, does not authorize or cause the taking of endangered land

species, even though most hunters would not kill an endangered

22

species “but-for” the State’s firearms license.'* Similarly, the

State does not authorize Medicare fraud by licensing physicians

and other health professionals to practice, even though these

professionals usually would need such a license in order to

make their fraud effective. Nor does a State authorize

violations of federal environmental laws by licensing hazardous

waste cleanup professionals some of whom may end up

violating those laws. In each case, the State is entitled to rely

upon the responsibility of the individuals it licenses to comply

with federal laws. .

In order to avoid such dislocations of federal and state

control, the law, including most prominently, New York and

Printz has rejected the First Circuit’s theory.’ There are many

defects in the decision below on this point.

First, as a matter of law and fact, the Commonwealth does

'* Even the First Circuit recognized, however, that a states’

Registry of Motor Vehicles cannot be held liable for private use

of registered automobiles to commit federal crimes. App. A-16

to 17. The Circuit Court’s attempt to distinguish the Registry

situation misses the crucial point that the only manner in which

the state has licensed fishing nets and pots is in a manne: that

seeks to avoid taking whales.

'S It is therefore unnecessary to solve the puzzle of how

NMFS “expressly declined to ban gillnet or lobster pot

fishing in Cape Cod Bay” without making “a policy

determination . . . that such a ban is unnecessary.” App.

A-19. It is certainly not the case that, if such a ban is

necessary, it must be imposed by the State, in preference to

federal regulation.

23

not grant “authority” to fish in a manner that takes endangered

species." On the contrary, it has prohibited fishermen from

taking any endangered species “listed under the Federal

Endangered Species Act.” Mass. Gen. Laws c. 131A, § 2.

The Commonwealth has taken many other regulatory measures

to protect whales. 322 C.M.R. 12.00-12.05 (1993). See above

at 12-15; App. A-6 to 7. The Commonwealth's regulatory

process thus restricts the liberty tv engage in unrestrained

fishing and prohibits the taking of right whales. The

Commonwealth cannot be said to authorize what it expressly

prohibits and tries to prevent."’

The state authorization theory, moreover, seems to assume

that no one would be allowed to fish unless the state government

affirmatively authorized it. This is wrong as a matter of basic

constitutional theory. In our free society, citizens may act as

they wish, unless their acts are validly prohibited.'* Where

‘6 The Massachusetts Endangered Species Act defines “take”

to include acts that “harass, harm; . . . kill, trap,” etc., just

like the Federal Endangered Species Act. Mass. Gen. Laws

c. 131A, § 1. ,

7 Using the concept of “state authorization” in this way

contravenes the federalist presumption that States as States do

not authorize violations of law--the very presumption upon

which depends the fiction of Ex Parte Young, 209 U.S. 123,

159 (1908), cited and applied by the Circuit Court at App.

A-23 to 24, and thus the authority of the Federal Court to

issue any injunction orders against any state officials.

'8 See e.g. U.S. Const., 9th and 10th Amendments; The

Declaration of Independence (all citizens possess "certain

24

federal obligations are concerned, individuals owe responsibility

directly to the federal government. New York, 505 U.S. at

165-66. Consistent with this conception of federalism and of

individual freedom, the States must be free to license private

activity and rely upon the private actors to comply with federal

law.

To hold that the State’s licensure of private activity

(particularly with the safeguards described above) has

authorized federal violations and thereby subjected the

Commonwealth to court supervision of its licensing and

regulatory processes is to enlist the States in an intermediate

role between citizens and their federal government. New York

irreconcilably conflicts with the Circuit Court’s approach on this

point. 505 U.S. at 163, 168-69, 176, 188. See also The

Federalist Papers Nos. 15, 21 (Hamilton).'°

unalienable Rights"). The First Circuit’s contrary assumption

harks back to the now-rejected fiction that the King (now the

Commonwealth) owns all the free-swimming fish in its

territorial waters, but that fiction has now been replaced by

the acknowledgment that the Commonwealth’s power is not

proprietary, but regulatory. Toomer v. Witsell, 334 U.S. 385

(1948).

'9 The First Circuit’s attempt to rely upon preemption

principles (App. A-25 to 28) founders at the outset, because the

ESA does not purport to preempt state regulations that leave

some risk of private ESA violations. Compare FERC v.

Mississippi, 456 U.S. 742, 764 (1982)(statute conditioning state

regulation “in a pre-emptible field upon the consideration of

federal proposals.”). Moreover, the lower courts could not

25

C. The Panel’s “Common Law Causation”

Theory Conflicts with Sweet Home, as well

as New York and Printz.

The lower court also purports to rely upon common law

causation principles (App. A-15 to 17). Its theory not only is

a novel construction of proximate cause under the ESA but also

conflicts with Babbitt v. Sweet Home Chapter of Community for

a Great Oregon, 515 U.S. 687 (1995), particularly as

understood by Justice O’Connor in her concurrence. 515 U.S.

at 712 (ESA incorporates common law principles of causation).

“After Sweet Home, the proximate cause of any ‘take’ would be

the permittee who modified the habitat, not the public official

who only granted a permit.” Quarles, “Sweet Home and the

Narrowing of Wildlife “Take’ Under Section 9 of the

Endangered Species Act”, 26 ELR 10003, 10013 (January,

1996). See also Pyramid Lake Paiute Tribe v. Department of

the Navy, 898 F.2d 1410, 1419-20 (9th Cir. 1990); National

Wildlife Federation v. National Park Service, 669 F. Supp. 384,

392 (D. Wyo. 1987)(National Park Service not liable for

potential takings caused by private campers disobeying the

agency’s rules).

The First Circuit’s decision notes that the District Court

found that “but for the permitting process,” whale takings

have had preemption in mind when they ordered measures

aimed at additional regulation, because preemption simply

precludes “enforce[ment]” of state law. Hines v. Davidowitz,

312 U.S. 52, 74 (1941). See Int’l Paper Co. v. Ouellette, 479

U.S. 481, 494, 497 (1987).

26

“could not take place.” App. A-15. Under but-for causation,

large numbers of people are potentially liable for whale

entanglements in fishing gear, including anyone upon whom

fishing depends -- such as the sellers of fixed gear, boat

builders, fuel dealers, purveyors of food to the ships’ crews,

lighthouse keepers, and numerous others. However, “but-for”

causation does not establish causation under the common law.

Sweet Home, 515 U.S. at 713 (O’Connor, J., concurring)

(“Proximate causation depends to a great extent on

considerations of the fairness of imposing liability for remote

consequences.”); King v. Pace, 575 F. Supp. 1385 (©. Mass.

1983) (holding that Commonwealth’s liquor licensing agency

was not liable in a wrongful death suit under 42 U.S.C.

§ 1983); Restatement of Torts, Second, § 431 and comment a.

If it were otherwise, then the seminal case of Palsgraf v. Long

Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), would

have come out the other way. Nor does but-for causation

suffice under other statutes, such as Title VII of the Civil Rights

Act of 1964.”°

0 Title VII achieves this result through its definition of

“employer,” which effectively excludes States in their

regulatory capacity. See Haddock v. Board of Dental

Examiners of California, 777 F.2d 462, 463 (9th Cir.

1985)(state board of dental examiners); Tyler v. Vickery, 517

F.2d 1089, 1096 (Sth Cir. 1975), cert. denied, 426 U.S. 940

(1976)(state board of bar examiners); George v. New Jersey

Board of Veterinary Medical Examiners, 635 F. Supp. 953, 956

(D.N.J. 1985), aff'd 794 F.2d 113 (3d Cir. 1986)(state board of

veterinary examiners); Woodward v. Virginia Board of Bar

Examiners, 420 F. Supp. 211, 214 (E.D. Va. 1976), aff'd 598

27

In addition, there is not even “but-for” causation in this

case. If there were no Departmental permitting process here,

then unfettered fishing would take place, and whale takings

would be far more likely than they are today. The

Commonwealth’s current licensure and reguiatory actions have

placed endangered whales in a far more protected position than

they would be absent state intervention. To ignore the totality

of the Commonwealth’s restrictions on fishing and to look only

at the fact that a number of licensed individuals may fish in

accordance with regulations, is akin to blaming the good

Samaritan for the consequences of intervening (or for

intervening unsuccessfully) to prevent harm, without

considering either the benefit given or the gratuitous nature of

the Samaritan’s actions. The common law resoundingly rejects

that approach. E.g. Osterlind v. Hill, 263 Mass. 73, 76; 160

N.E. 301 (1928).

F.2d 1345 (4th Cir. 1979) (state board of bar examiners).

21 The only ESA cases that the First Circuit cites (elsewhere in

the opinion -- at App. A-15, 26 to 27) deal not with common

law principles applied to state regulatory agencies, but with

States acting in a proprietary capacity (i.e. maintaining

particular animals in a sensitive habitat), Palila J, 639 F.2d at

497-98; Palila IT, 852 F.2d at 1110); or with governmental

entities not entitled to 10th Amendment protection (i.e. federal

agencies or local agencies, Sierra Club v. Yeutter, 926 F.2d

429, 438-39 (Sth Cir. 1991)(U.S. Forest Service); Defenders of

Wildlife v. EPA, 882 F.2d 1294, 1301 (8th Cir. 1989);

Loggerhead Turtle v. County Council of Volusia County, 896

F. Supp. 1170, 1180-81 (M.D. Fla. 1995)). These cases follow

28

Finally, state regulations do not relieve private actors of a

duty to meet a higher standard of conduct. Under common law

rules, private defendants may have an obligation to exercise

greater care than simply complying with state and federal

regulations. See Brochu v. Ortho Pharmaceutical Corp., 642

F.2d 652, 658 (ist Cir. 1981); MacDonald v. Ortho

Pharmaceutical Corp., 394 Mass. 131, 139, 475 N.E. 2d 65,

cert. denied, 474 U.S. 920 (1985), and cases cited. State

regulators cannot be the proximate cause of harm under Sweet

Home where they leave intact (and even replicate in state law)

the federal duty of private actors to comply with the ESA.

In short, the Commonwealth has not increased the risk of

harm to whales. Instead of doing nothing, the Commonwealth

has in fact decreased that risk by regulation. Even if it has not

decreased the risk of harm by private parties to zero, the

common law has not, to defendants’ knowledge, ever deemed

state regulators to be the proximate cause of alleged harm

simply because the regulators have left it up to private parties

to conform their activities to federal law, such as the ESA.

doubtful legal concepts, in light of Sweet Home.

29

Conclusion.

For the foregoing reasons, the Court should issue a writ of

certiorari to review the decision of the United States Court of

Appeals for the First Circuit.

Respectfully submitted,

SCOTT HARSHBARGER

ATTORNEY GENERAL

Date: March 6, 1998

Salvatore M. Giorlandino

Douglas H. Wilkins*

Assistant Attorneys General

Government Bureau

One Ashburton Place

Boston, MA 02108

(617) 727-7200 ext. 2068

*Counsel of Record