# Petition for Writ of Certiorari — Coates v. Strahan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 978

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2363%3A01. Public record. Not legal advice.