Amicus Curiae Brief — Coates v. Strahan

, \ Supreme Court, U.S.

ot i ee ae

No. 97-1485

APR 1998

In The CLERK

Supreme Court of the United States

October Term, 1997

o

PHILIP COATES, DIRECTOR OF THE

MASSACHUSETTS DIVISION OF

MARINE FISHERIES, ET AL.,

Petitioners,

V.

RICHARD MAX STRAHAN,

Respondent.

ee ¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

‘

AMICI CURIAE BRIEF OF THE STATES

OF CALIFORNIA, ALASKA, ARIZONA, GEORGIA,

IDAHO, INDIANA, KANSAS, MAINE, MARYLAND,

MISSISSIPPI NEBRASKA, NEW HAMPSHIRE, NORTH

CAROLINA, OHIO, SOUTH DAKOTA, TENNESSEE, UTAH,

VIRGINIA, AND THE GOVERNMENT OF GUAM IN

SUPPORT OF THE PETITION FOR CERTIORARI

-

vy

Danie. E. LUNGREN

Attorney General

Ropverick E. WaAtston

Chief Assistant Attorney General

RicHaArp M. FRANK

Senior Assistant Attorney General

Counsel of Record

Linus MaAsourepts

Deputy Attorney General

1300 I St., Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 445-8178

Fax: (916) 327-2319

Counsel for Amicus

State of California

[Additional Counsel Listed On Inside Front Cover]

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

Bruce M. Bore.Ho

Attorney General of

the State of Alaska

Grant Woops

Attorney General of

the State of Arizona

TuHursert E. BAKER

Attorney General of

the State of Georgia

ALAN G. LANCE

Attorney General of

the State of Idaho

Jerrrey A. Moopisett

Attorney General of

the State of Indiana

Carta J. STOVALL

Attorney General of

the State of Kansas

ANDREW KETTERER

Attorney General of

the State of Maine

]. JosepH CuRRAN Jr.

Attorney General of

the State of Maryland

Mike Moore

Attorney General of

the State of Mississippi

Don STENBERG

Attorney General of

the State of Nebraska

Pour T. McLAUGHLIN

Attorney General

of the State of

New Hampshire

MicuHaet F. EAstey

Attorney General of

the State of North Carolina

Berry D. MONTGOMERY

Attorney General of

the State of Ohio

Mark Barnett

Attorney General of

the State of South Dakota

JoHN KNox Wa.xkup

Attorney General of

the State of Tennessee

JAN GRAHAM

Attorney General of

the State of Utah

Mark L. EARLEY

Attorney General

of the Commonwealth

of Virginia

Rosert Kono

Acting Attorney General of

the Government of Guam

QUESTIONS PRESENTED

1. Whether a federal court decree requiring a State

to enact and enforce remedial wildlife protection mea-

sures to implement the federal Endangered Species Act

(“ESA”), where federal officials specifically charged with

implementing the ESA have themselves declined to enact

such measures, violates the Tenth Amendment to the U.S.

Constitution and related principles of federalism and

intergovernmental comity.

2. Whether Massachusetts proximately “caused” the

take of endangered whales, for purposes of the ESA, by

issuing fishing permits to private fishermen whose fish-

ing activities may result in entanglement of whales in

their nets where: (a) Massachusetts does not itself con-

duct any fishing that resulted in the take of whales; (b)

Massachusetts law expressly prohibits the take of any

endangered whales; (c) Massachusetts regulates fishing

gear to minimize the risk of any take of whales; and (d)

the Federal Government could have, but declined to,

adopt more stringent fishing restrictions under the ESA

and the Marine Mammal Protection Act that could have

further reduced or completely eliminated the risk of an

illegal take of whales.

il

TABLE OF CONTENTS

Page

INTERES! OF AME.US CURIAE 6 fo050 cisco es 1

SIATEMAEOGL OF TEES CADE. cece nn cnsys pew ones sans 3

REASONS FOR GRANTING THE PETITION....... 4

A. The Ruling Below Directly Conflicts With

Recent Decisions of This Court Invoking Fed-

eralism Principles to Bar the Federal Govern-

ment From Conscripting State Officers and

Processes to Carry Out Federal Programs and

en a 5. Sea Dar ary pie Pores ni mr ae 5

B. The Court Should Grant Review Because Mas-

sachusetts’ Regulation of Fishermen Does Not

Make Massachusetts the “Cause” of Whale

“Takes” by Third Parties Under the Endan-

pera Smicsee: Bat -. es a ween cca 13

CTIA Ade sca kg. 0 hae a Wee Pe en oe ee Ee 20

een «

TABLE OF AUTHORITIE-

Page

Cases

Arizonans for Official English v. Arizona, __ U.S.

sciue S AF Diets BO CAGE T os es eer, to er eeee 6, 12

Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 515 U.S. 687 (1995) ....... 4, 13, 14, 15

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) .... 10

City of Boerne v. Flores, __ U.S. ___, 117 S.Ct. 2157

SR NG es isaac ce wecows Ds Pre te ee te rere 9, 12

Coalition for Clean Air, Inc. v. South Coast Air Qual-

ity Management Dist., et al., U.S.D.C., C.D. Cal.

SC ee EO 58 60 aes ope aeeelaG sd ke Sia eee ves 2

Edelman v. Jordan, 415 U.S. 651 (1974)................ 5

Ex parte Young, 209 US. TZS (1906)... 0 ce cewek 5

Florida Lime & Avoccdo Growers, Inc. v. Paul, 373

es ee Se oa Se ey Sig SL bak Chee einw wees bk 10

Gregory v. Ashcroft, 501 U.S. 452 (1991).............. 12

Hines v. Davidowitz, 312 U.S. 52 (1941) .............. 11

Idaho v. Coeur d‘Alene Tribe of Idaho, __ U.S. __,

a ONS eo An ou Oke ok oa Ray COA Om 5

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .... 16

New State Ice Co. v. Liebermann, 285 U.S. 262 (1932)

CIPCMNNSEy Fyp SEROMEKUEINEE) Oks 0 Use Races ee bins vs 9, 10

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

ehh eS ett ot en Sere ka SSeS awe Oks 5, 6, 7, 9, 12

Palila v. Hawaii Dept. of Land and Natural Resources

(“Palila”), 852 F.2d 1106 (9th Cir. 1988)......... 14, 15

iv

TABLE OF AUTHORITIES —- Continued

Page

Printz v. United States, ___ U.S. __, 117 S.Ct. 2365

CEE Ess hee ea os Se i a ee 5, 6, 9.12

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .... 10

Seattle Audubon Society v. Moseley, 80 F.3d 1401 (9th

Rae ROE Sos dae ceo HAs Lee aI Coo eae a ees 15

Seminole Tribe of Florida v. Fiorida, __ U.S. ___, 116

aes BE LEO. 6 6 hae sod See ee oe

Shaw v. Delta Airlines, Inc., 462 U.S. 85 (1983)....... 10

Simon v. Eastern Ky. Welfare Rights Organization,

BLO AF. BE CEFF GD og o8 5 6 0's Wak 59h Ree etl vas 16

CONSTITUTIONAL PROVISIONS

TOMY FTI 55 eo seis es a, 3, 0, 30,41, te

STOEL TRUER 65. sso on EA 5S OR EL 5

STATUTES

16 U.S.C

Saba be ohn RDN wow in bhai an er ines 3

Br Reet ROMO Bibs ck pees vo aa DURES bok eh 18

BRS ar och a Codie cea ccs eb eiaeaeieee fees 18

Re ROGER soe el N RS CAET CLS aWRiw eee Cra Sa eee Lee 3

ie eo: Pe ese bivcs bak SPA EU NUNC CEC RA REM RS ORO ed eWeek e 3

Mt DPPRIED sw Ke AS ao 0 ORR Ch OKO PRR eed 8

Ee ROND SA er uks een dee VER NS A Uee anew ee 17

ES TERRES AE Re aS ADEE ME aig HMO Ril IE SIE AI 8

ED, Werner <a

| ELE FLIP

ee .

v

TABLE OF AUTHORITIES - Continued

Page

OTR oes vivnd pWibak ke vei eee Velaraceaoak Keke 17

REIN 2 oe iawn saws S495 be AORTA CRO eE SES 17

Bee 5 URE pier pte tae pe ramen igen reagent ca iit ae 17

DR vas his UN wees sae awads bh kan cue kae Site 17

DONE kc no Cx OEMS LS PERY Pad ce Suave suns yEReA beat 3

Ne ieee a 3

42 U.S.C.

eR os os Pes pa adn pos eee (oars re

50 Code of Federal Regulations

EI CCAS ERENT Ce ON Ed OAH ee tS RE 17

California Fish & Game Code

a a oe 5 ah 48 ha seme A Las Awe gorau eeeeea 8

Court RuLes

Supreme Court Rule

PR Saw bsa cd eh cheek kas bas «Xb ia vss Oh eee eee 4

WE ih io Fk ale enya ov oe aN ELL OES 1

OTHER AUTHORITIES

Prosser and Keeton on the Law of Torts, § 41, p. 266

RE SPUD ake Neh en Kc ae es sen thease eyes nee se 16

R. Anthony, Interpretive Rules, Policy Statements,

Guidances, Manuals, and the Like — Should Federal

Agencies Use Them to Bind the Public?, 41 Duke

Linde RRS. as i ois ee cA ey ae ere CER Se oes 2

S: Breyer, Breaking the Vicious Circle: Towards Effec-

tive Risk Regulation (Harvard 1993)................ 19

T. Davis, “Expect Suits If Pygmy Owl Habitat

Hurt,” Ariz. Daily Sun, (Nov. 22, 1997)... 2.00005. 2

1

AMICI] CURIAE BRIEF

The States of California, Alaska, Arizona, Georgia,

Idaho, Indiana, Kansas, Maine, Maryland, Mississippi,

Nebraska, New Hampshire, North Carolina, Ohio, South

Dakota, Tennessee, Utah, Virginia, and the Government

of Guam, respectfully file this brief amici curiae, pursuant

to Supreme Court Rule 37.4. The brief is submitted in

support of the petition for certiorari filed in this case by

the Commonwealth of Massachusetts.

INTEREST OF AMICI CURIAE

California and its sister states represent sovereign

entities in our federal system. Each of the amici States has

enacted its own set of regulatory programs, under its |

police power authority, to protect the health, safety and

welfare of its citizens. Except to the very limited extent

they are preempted by the federal government under the

Supremacy Clause of the U.S. Constitution, these state

regulatory programs constitute distinct governmental

program, enacted and administered by the sovereign

States.

The decision below threatens the very nature of this

system of dual sovereignty. Plaintiffs below, unsuccessful

in vindicating their policy views before Congress or fed-

eral regulators, instead brought a citizen suit in federal

court. There they convinced a district judge - and ulti-

mately the Court of Appeals — that the federal judiciary

has the power to compel state officials to take affirmative

steps to implement federal law that federal officials have

deemed unnecessary, unwise or both. The implications of

that ruling for amici States are both enormous and destruc-

tive. Left unreviewed, the decision below will no doubt

encourage private citizens and federal officials alike to

force States to carry out and implement federal programs

that the federal government is itself unprepared to pursue.

—————————eEeE——eEeEe—

2

Such a transfer of government functions, political accoun-

tability and attendant costs is both unconstitutional and

unsound public policy.

The adverse effects of the decision below are already

being felt around the nation. In Arizona, for example,

federal wildlife officials — relying on the decision below —

have threatened to hold State and local officials responsi-

ble for an illegal “take” of pygmy owls (a listed species

under the ESA) if the state and local officials allow rezon-

ing or issue building permits to landowners who then

modify habitats suitable for the pygmy owl. (T. Davis,

“Expect Suits If Pygmy Owl Habitat Hurt,” Ariz. Daily

Sun, p. 1B (Nov. 22, 1997).)

In the Pacific Northwest, federally-adopted guide-

lines under the ESA have been used to compel State

officials to limit timber harvesting on private lands when

the latter administer state permitting processes. Failure to

do so, it is asserted, will render the States liable under the

ESA on a complicity theory with private actors. Again,

the net result is that States have been conscripted as the

regulatory agencies of the federal government. (R.

Anthony, Interpretive Rules, Policy Statements, Guidances,

Manuals, and the Like — Should Federal Agencies Use Them to

Bind the Public?, 41 Duke L.J. 1311, 1371 (1992).)

And in California, private parties have sued State

and regional officials in federal court under the federal

Clean Air Act (42 U.S.C. § 7401 et seq.) to compel, inter

alia, the State to implement ozone emission standards

advocated by those plaintiffs. (Coalition for Clean Air, Inc.

v. South Coast Air Quality Management Dist., et al.,

U.S.D.C., C.D. Cal. No. CV 97-6916.)

The potentiaJ, deleterious consequences of the deci-

sion below are by no means limited to the field of envi-

ronmental regulation. The same reasoning employed by

the district court and the Court of Appeals may be

invoked to justify a similar shifting of regulatory respon-

sibilities from the federal government to the States in

such diverse subject areas as welfare, health care and law

3

enforcement. The lower courts’ refusal to recognize estab-

lished principles of federalism and intergovernmental

comity, coupled with their strained application of causa-

tion principles to interpret federal remedial legisiation,

thus has nationwide ramifications, and threatens a broad

array of regulatory programs administered by the States.

STATEMENT OF THE CASE

Amici States agree with Petitioner Massachusetts’

Statement of the Case, and adopt it as if set forth in full

herein. Amici stress only the following, specific points:

In this case, Northern Right whales, an animal spe-

cies listed as endangered under the ESA (16 U.S.C.

§§ 1531-1544), were deemed “taken” within the meaning

of the ESA because they became entangled in the gillnets

and lobster pot lines of private fishermen. The courts

below found Massachusetts culpable for this whale

“take” because it issued fishing permits to fishermen, and

had adopted state regulations on the use of fishing gear.

Massachusetts itself did not conduct any of the fishing

that resulted in the take of whales. (Appendix to Petition

(“Pet. App.”) B-39.) Nor did Massachusetts require fisher-

men who received permits to fish. By issuing fishing

permits, neither did Massachusetts purport to authorize

any take of listed whales. To the contrary, Massachusetts

‘aw expressly prohibits the taking of any federally-listed

species, including Northern Right whales. (Petitic

(“Pet.”) 12.) Moreover, the undisputed purpose of Magfa-

chusetts’ fishing gear regulations is to minimize the risk of

whale entanglements and takes caused by fishermen.

Significantly, the federal government, through the

National Marine Fisheries Service (“NMFS”), has broad

authority under the Marine Mammal Protection Act

(“MMPA,” 16 U.S.C. §§ 1361-1421h) and the ESA (16

U.S.C. § 1540(f)) to impose additional or more stringent

fishing gear restrictions than those of Massachusetts, or

to ban fishing altogether to avoid any take of whales. (See

Pet. App. A-5; A-13 to A-15; B-23 to B-26.) However,

4

NMFS has made a policy judgment not to adopt more

stringent whale protection measures under the regulatory

power conferred upon it by those two federal statutes.

(See A-18, n.3; A-19 (noting that NMFS had declined to

ban gillnet and lobster pot fishing in Cape Cod Bay).)

Indeed, apparently it was only when plaintiff was unsuc-

cessful in convincing NMFS to adopt the regulatory mea-

sures he advocates that plaintiff found it necessary to

initiate the present litigation against Massachusetts to

accomplish that objective indirectly.

REASONS FOR GRANTING THE PETITION

There are several reasons why certiorari should be

granted under the established standards articulated in

Supreme Court Rule 10. First, the decision below directly

conflicts with recent decisions of this Court regarding the

scope of the Tenth Amendment and related principles of

federalism. Second, the Court of Appeals below seriously

misconstrued principles of causation applicable under the

ESA, and did so in a manner which is fundamentally

inconsistent with the Court’s recent decision in Babbitt v.

Sweet Home Chapter of Communities for a Great Oregon, 515

U.S. 687 (1995); the Court should squarely resolve the

ESA causation question now. Finally, the decision below,

if left unreviewed, will have serious, negative conse-

quences for all of the States — particularly as they relate to

citizen suits brought against state officials and to ques-

tions of intergovernmental comity between the States and

the federal government. These points are developed

below, with particular reference to the constitutional and

statutory issues presented in Massachusetts’ petition for

certiorari.

5

A. The Ruling Below Directly Conflicts With Recent

Decisions of This Court Invoking Federalism Prin-

ciples to Bar the Federal Government From Con-

scripting State Officers and Processes to Carry Out

Federal Programs and Objectives.

The petition in this case calls upon the Court to once

again “discer[n] the core of sovereignty retained by the

States under the Tenth Amendment” and related princi-

ples of federalism. (New York v. United States, 505 U.S. 144,

159 (1992).) By compelling Massachusetts to take affirma-

tive and unprecedented steps to implement the ESA, the

tribunals below have ignored this Court’s repeated admo-

nition that “[t]he federal government may not compel the

States to enact or administer a federal regulatory pro-

gram.” (New York, supra, 505 U.S. at 188; Printz v. United

States, US. ._,. 187. SACK. 23565, 2983 (1997).) This

conflict, and the grave consequences it portends for all

the States, warrants the Court's grant of review.

' The extraordinary relief ordered by the district court

similarly would appear to violate the Eleventh Amendment.

States are generally immune from unconsented suits in the

federal courts under the Eleventh Amendment, subject to the

narrow exception to Eleventh Amendment immunity afforded

under Ex parte Young, 209 U.S. 123 (1908). The extraordinary,

open-ended and affirmative mandate imposed on Massachusetts

state officials in this case appears to exceed by a substantial

degree the proper scope of Ex parte Young. See Seminole Tribe of

Florida v. Florida, ___ U.S. __, 116 S.Ct. 1114 (1996); Idaho v. Coeur

d‘Alene Tribe of Idaho, U.S. __, 117 S.Ct. 2028 (1997).

While the issue of Massachusetts’ Eleventh Amendment

immunity from suit was actively contested and adjudicated

below, the question is not squarely presented in the petition for

certiorari. Nonetheless, a State’s immunity from suit under the

Eleventh Amendment is jurisdictional, and may be raised at any

stage of the litigation. Edelman v. Jordan, 415 U.S. 651, 678 (1974).

6

1. The First Circuit acknowledged, as it must, that “the

commands of the Tenth Amendment apply to all branches

of the federal government, including the federal courts.”

(Pet. App. at A-31.) This, of course, applies with equal

force to the related principles of federalism that are impli-

cated in this case. (See discussion at pp. 12-13, infra.)

Similarly, the district court’s efforts to justify its imposi-

tion of federal regulatory duties on Massachusetts as not

requiring the Commonwealth “to modify its legislative

process” are patently unavailing in light of Printz, supra.

There the Court made it abundantly clear that it is no less

offensive to federalism principles to commandeer a

State’s regulatory program than it is to dragoon its legisla-

tive process. (117 S.Ct. 2365, 2380-2381, 2384 (“The Fed-

eral Government may neither issue directives requiring

the States to address particular problems, nor command

the States’ officers . . . to administer or enforce a federal

regulatory program”).) The lower courts’ decree that

Massachusetts adopt measures to enforce a federal regu-

latory program that federal regulators themselves

declined to enact is at least as noxious to federalism

principles as the statutory mandates struck down in New

York and Printz. Such mandates are “fundamentally

incotapatible with our constitutional system of dual sov-

ereignty.” (Printz, supra, 117 S.Ct. at 2384.)

2. The affirmative mandate the district court imposed

on Massachusetts in this case is startling in scope. This is

perhaps best understood by comparing the terms of the

lower court’s mandatory injunction to regulatory mea-

sures that federal agencies are themselves expressly

empowered to enact under the ESA.

The Court, similarly, may raise the jurisdictional issue sua

sponte. Arizonans for Official English v. Arizona, ___ U.S. , 117

S.Ct. 1055, 1071 (1997).

7

While federal agencies only need ensure that their

permitting does not cause jeopardy to the aggregate spe-

cies population, the courts below directed Massachusetts

to ensure that any fishing permit it issues does not create

a risk of a take of a single member of a listed species. (See

Pet. App. A-22.) While federal permit agencies need only

consult with federal wildlife agencies under section 7 of

the ESA, the district court ordered Massachusetts to set

up a court-supervised advisory committee and engage in

substantive discussions with the private plaintiff regarding

changes to Massachusetts’ state regulatory program; the

district court will then review those changes to determine

their adequacy in ensuring that program’s legality under

the ESA. (See Pet. App. A-3 (Massachusetts must convene

an Endangered Whale Working Group and “engage in

substantive discussions with the Plaintiff”); A-29 (Massa-

chusetts to “form a working group and engage in sub-

stantive discussions toward rectifying [Massachusetts’]

statutory violation with working group members whose

membership is directed ultimately by the district court”).)

There is simply no statutory basis in the ESA for such

a “shadow” section 7 system for State permit programs,

and no indication that Congress intended such intrusive

supervision of the States’ permit programs at the hands

of private citizens. The lower courts’ imposition on Mas-

sachusetts of these ad hoc, affirmative mandates finds no

support in the ESA and violates basic constitutional pre-

cepts of intergovernmental comity.

3. As this Court aptly noted in New York, Congress has

enacted numerous environmental statutes that expressly

contemplate a shared federal-state enforcement role. (505

U.S. at 167-168.) These include the Clean Air Act, Clean

Water Act, the Resource Conservation and Recovery Act,

and the Coastal Zone Management Act. Those statutes

reflect Congress’ acknowledged power “to offer States

5

the choice of regulating that activity according to federal

standards or having state law pre-empted by federal reg-

ulation.” (Id. at 167.)

The ESA, in contrast, is federal environmental legis-

lation of a different kind. It is a so-called federal “lead”

statute, in which enforcement authority is expressly

imposed upon federal agencies: principally the U.S. Fish

and Wildlife Service, (NMFS), and the U.S. Department of

Justice. (See 16 U.S.C. § 1540.) The States, on the other

hand, are not required to enforce the ESA.?

This is not to say that States have no role to play in

exercising their independent police power authority to

protect endangered plant and animal species. To the con-

trary, most States have enacted their own endangered

species laws, which are designed to accomplish parallel

objectives to the ESA, albeit through a distinct mix of

State-crafted strategies and requirements. (See, e.g., Calif.

Fish & Game Code § 2050 et seq. (California Endangered

Species Act).)

Under these circumstances, the parameters and

implications of the district court decree in this case are

particularly offensive to federalism principles. The pri-

vate plaintiff, having failed to convince the NMFS

through the political process to enact the restrictions on

commercial fishing he advocates, successfully impor-

tuned a federal court to impose those restrictions indi-

rectly — by commandeering Massachusetts officials to

modify their state regulatory program so as to implement

plaintiff's objectives under the ESA. Rather than be

2 Congress did envision a role for States under the ESA,

albeit a non-regulatory one. See, e.g., 16 U.S.C. § 1535, directing

federal regulators to “cooperate to the maximum extent

practicable with the States” in carrying out the ESA’s objectives.

See also, 16 U.S.C. § 1531(c)(2).

—

9

allowed to administer its own wildlife preservation pro-

gram, Massachusetts has been forced by federal court

decree to devise the very type of ad hoc measures that

federal ESA regulators themselves previously rejected on

policy grounds.

Such a result directly contravenes this Court's feder-

alism jurisprudence. The decision below “purports to

draft state law enforcement officers to participate .. . in

the administration of a federally-enacted program.”

(Printz, supra, 117 S.Ct. at 2369.) That, in turn, “contra-

dicts vital principles necessary to maintain . . . the federal

balance.” (City of Boerne v. Flores, __ U.S. __, 117 S.Ct.

2157, 2171 (1997).)

Quite simply, the lower court decree “‘comman-

deer[s]’ state governments into the service of federal

regulatory purposes”; it is for that reason “inconsistent

with the Constitution’s division of authority between fed-

eral and state governments.” (New York, supra, 505 U.S. at

175.)

4. Ironically, Massachusetts could have avoided liability

under the ESA by simply declining to regulate commer-

cial fishing at all. The district court expressly noted this

anomalous result in its decision below. (Pet. App. at

B-41-42.) The Commonwealth has, in effect, been

penalized under the ESA for having taken affirmative,

positive steps to protect wildlife resources within its

boundaries. Simply stated, as a result of the decision

below Massachusetts is in a worse legal position for

having implemented a salutary state natural resource

protection program than it would have been had the

Commonwealth not exercised its police powers in this

fashion at all. This contradicts established notions of

cooperative federalism, and discourages States from act-

ing as the “social laboratories” that Justice Brandeis

urged them to be nearly 70 years ago. (New State Ice Co. v.

10

Liebermann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissent-

ing).

5. The Court of Appeals grounded its ruling that no

Tenth Amendment violation had occurred in major part

on the startling holding that Massachusetts’ benign pro-

gram of fishing regulation was preempted by the ESA.

(Pet. App. at A-33.) The Court of Appeals reasoned that

by including States as parties subject to the ESA’s prohi-

bitions, Congress implicitly intended to preempt any

action of a State inconsistent with and in violation of the

ESA. (Ibid.) This construction of federal law could prevent

States and local governments from adopting any regula-

tion that authorizes third party activities that might con-

ceivably cause harm to listed species, even if the State or

local regulation is wholly benign in its objectives.

The First Circuit’s reliance on preemption theory in

this Tenth Amendment context does violence to the

Court’s precedents. Judicial consideration of the Suprem-

acy Clause “start[s] with the assumption that the historic

police powers of the States [are] not to be superseded by

{federal law] unless that [is] the clear and manifest pur-

pose of Congress.” (Cipollone v. Liggett Group, Inc., 505

U.S. 504, 516 (1992).) State law may be preempted if

Congress has explicitly mandated the preemption of state

law (Shaw v. Delta Airlines, Inc., 462 U.S. 85, 95-100

(1983)), or if Congress has indicated an intent to “occupy

the field of regulation,” thereby displacing state laws on

the same subject. (Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947).) In the absence of express language or

congressional! intent to occupy the field, state law may be

preempted to the extent the latter actually conflicts with

federal law, i.e., when “compliance with both federal and

state regulations is a physical impossibility” (Florida Lime

& Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143

(1963); or when state law “stands as an obstacle to the

11

accomplishment and execution of the full purposes and

objectives of Congress.” (Hines v. Davidowitz, 312 U.S. 52,

67 (1941).)

It is apparent from the language and structure of the

ES“. that Congress recognized and accommodated the

continued operation of State laws regulating wildlife.

Congress expressed no intention through the ESA of

occupying the field of such regulations. To the contrary,

the ESA only preempts state law that directly conflicts

with the ESA. (16 U.S.C. § 1535(f).) A finding that Massa-

chusetts’ fishing regulations are preempted because they

do not go far enough is simply inappropriate, because

State and federal laws do not conflict, and Massachusetts’

law is no obstacle to the accomplishment of federal objec-

tives. Kegulated persons can and must comply with both

state ana federal law on the subject.

Core principles of federalism dictate that courts pro-

ceed very cautiously in implying preemption of state

regulations that relate to fundamental aspects of state

sovereignty. Moreover, the Supremacy Clause does not

lead to any requirement that States adopt, endorse or

legislate to implement a federal regulatory program.

The courts below turned these basic principles on

their head. Instead of recognizing that a State’s exercise

of its basic police power authority does not offend estab-

lished Supremacy Clause principles, they grounded their

rejection of Massachusetts’ Tenth Amendment argument

in principal part on the baseless conclusion that its

benign regulatory program was preempted by federal

standards that the United States had itself declined to

adopt. This was fundamental error. As this Court has

aptly noted in similar circumstances, “the Supremacy

Clause merely brings us back to the question . . . whether

laws conscripting state officials violate state sovereignty

12

and are thus not in accord with the Constitution.” (Printz,

supra, 117 S.Ct. at 2379.)

Similarly, the lower courts’ preemption ruling is

directly tied to their flawed view of causation principles

under the ESA, discussed in part (B), below. Simplv stated,

one key reason no preemption exists here is that Massa-

chusetts did not cause an illegal take under the ESA.

6. Both the decision below and Massachusetts’ petition

focus their constitutional discussion on the Tenth Amend-

ment. The Tenth Amendment, however, is not the only

cornerstone of federalism. Nor is it the sole constitutional

provision implicated in this case. (See Printz, supra, 117

S.Ct. at 2379 n.13 (“the Tenth Amendment is [not] the

exclusive textual source of protection for principles of

federalism” ).)

The Court has repeatedly stressed that our system of

dual sovereignty is reflected in numerous constitutional

provisions. (Id. at 2370, 2376, 2379 n.13; City of Boerne v.

Flores, supra, 117 S.Ct. at 2171; Arizonans for Official

English v. Arizona, __ U.S. ___, 117 S.Ct. 1055, 1073-1075;

New York, supra, 505 U.S. at 181-182; Gregory v. Ashcroft,

501 U.S. 452, 457.(1991).) This larger orbit of federalism

principles is similarly contravened by the extraordinary

dictates of the decisions below.

Just last Term, the Court counselled: “The Constitu-

tion contemplates that a State’s government will repre-

sent and remain accountable to its own citizens.” (Printz,

supra, at 2377.) It is those broader constitutional precepts,

and not simply the Tenth Amendment, that make “clear

that the Federal Government may not compel the States

to implement, by legislation or executive action, federal

regulatory programs.” (Id. at 2380.) The grave conse-

quences of the lower courts’ contrary conclusion, for both

Massachusetts and its sister States, warrant the Court’s

grant of certiorari in this case.

13

B. The Court Should Grant Review Because Massa-

chusetts’ Regulation of Fishermen Does Not Make

Massachusetts the “Cause” of Whale “Takes” by

Third Parties Under the Endangered Species Act.

The Court of Appeals’ wholesale disregard of this

Court's federalism precedents is particularly unfortunate

in light of the fact that the courts below need not have

confronted the constitutional issues at all. This is because

the lower courts similarly erred in interpreting the statu-

tory mandates of the ESA as they affect Massachusetts.

Had those courts properly applied this Court’s recent

decision in Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon (“Sweet Home”), 515 U.S. 687 (1995), it

would never have been necessary to reach the constitu-

tional question.

The Court should grant review to resolve continuing

confusion among the lower courts over the proper causa-

tion standard for a “take” under the ESA. The Court also

should grant review because of the highly intrusive

impact of the decision below upon States as regulators of

their citizens. Virtually every State licenses or issues per-

mits for a wide range of private activities (like fishing,

timber harvesting, water diversions, land grading, con-

struction activities, etc.). These private activities inevita-

bly pose some risk of a take of listed species under the

ESA. Per the First Circuit’s reasoning, every State now

will be liable for any take resulting from those private

activities simply because the State issued a license for

that activity, and failed to ensure that the risk of any take

would be zero. The fact that State law prchibits a take

will be inadequate to discharge this ESA duty, as it was in

Massachusetts’ case. Massachusetts’ petition for certiorari

should be granted because it raises important issues in

the administration of the ESA that have profound federal-

ism implications.

14

1. The majority, concurring, and dissenting opinions in

Sweet Home, supra, 515 U.S. 687, all agreed that the “take”

prohibition in the ESA is subject to a proximate cause

limitation.s The United States also took the position

before this Court in Sweet Home that “principles of proxi-

mate causation” should be applied to address the issue of

“intervening acts” by others in the factual chain of causa-

tion for a take. (See Reply Br. for Petitioners at 4, n.4 in

No. 94-859 (1995).) Because Sweet Home was a purely

facial challenge, there was no need to rule on any particu-

lar pattern of take “causation” in a specific set of circum-

stances. However, four Justices thought that the pattern

of indirect and attenuated causation in Palila v. Hawaii

Dept. of Land and Natural Resources (“Palila”), 852 F.2d

1106 (9th Cir. 1988), did not satisfy proximate cause

requirements, and that the Palila case had been wrongly

decided. (See 515 U.S. at 709, 713-714 (O’Connor, J., con-

curring); id. at 715-716 (Scalia, J., dissenting).) Yet some

courts continue to view the Palila decision, with its “but

3 See 515 U.S. at 697, n.9 (“take” prohibition and the harm

regulation “incorporate ordinary requirements of proximate

causation”); id. at 700 n.13; id. at 709 (harm regulation “is

limited by ordinary principles of proximate causation”)

(O’Connor, J., concurring); id. at 712-713 (no Congressional

intent “to dispense with ordinary principles of proximate

causation”, and “private parties should be held liable [for a

take] only if their habitat-modifying actions proximately cause

death or injury to protected animals”) (O’Connor, J.,

concurring); id. at 732-733 (the “take” prohibition contains “a

requirement of proximate causation”) (Scalia, J., dissenting).

The members of the Court differed as to whether the “harm”

regulation, in fact, incorporated such a proximate cause

restriction: the majority and concurring Justices thought that it

did (and, therefore, the regulation was valid), and the

dissenting Justices thought that it did not (and, therefore, the

regulation was invalid).

15

for” causation analysis, as a model. Indeed, the Ninth

Circuit apparently believes that this Court endorsed the

Palila causation standard in Sweet Home. (See Seattle

Audubon Society v. Moseley, 80 F.3d 1401, 1405 (9th Cir.

1996) (stating that in Sweet Home “five Justices affirmed

Palila in all respects”).)

Here, the First Circuit erroneously used a “but for”

standard rather than the proximate cause standard

required by Sweet Home. (See Pet. App. A-15 (take prohi-

bitions “apply to acts by third parties that allow or autho-

rize acts that exact a taking and that, but for the

permitting process, could not take place.”); Pet. App. B-57

(“In the absence of permitting, no fish entanglement could

occur.”) (emphases added).) By granting review the Court

can address proximate cause principles applicable under

the ESA, an issue discussed but left unresolved in Sweet

Home.

2. Under the proximate cause standard, fishermen were

“intervening independent actor[s]” (Pet. App. A-17), who

displaced Massachusetts as the “cause” of any take, con-

trary to the First Circuit’s conclusion. The First Circuit

said that while a State’s licensing of cars should not make

the State liable for a car owner's illegal use of the car,

here, it is impossible to use gillnets and lobster pots “in

the manner permitted by [Massachusetts] without risk of

violating the ESA by exacting a take.” Id. But Massa-

chusetts does not require fishermen to fish; nor does it

prevent fishermen from taking additional precautions

(beyond those mandated by the State) to avoid any take.

Consequently, fishermen are an intervening, independent

cause of any take. They alone make decisions about

whether, when and how to fish in light of the risk of take

and the prohibition against take under both federal and

Massachusetts law. There is no showing that plaintiff

could not have brought suit against fishermen (either via

16

a class action or otherwise), and thereby sought relief

against those who directly cause any take.* Therefore,

fishermen are an independent, intervening cause of any

take under ordinary proximate cause principles.

3. Even under a “but for” causation standard, Massa-

chusetts is not the “cause” of any whale take. Under “but

for” causation:

“The defendant’s conduct [i.e., Massachusetts’

licensing of fishing] is a cause of the event [i.e.,

take of whales] if the event would not have

occurred but for the conduct; conversely, the

defendant’s conduct is not a cause of the event, if

the event would have occurred without it.” (W.

Keeton, et al., Prosser and Keeton on the Law of

Torts, § 41, p. 266 (5th ed. 1984) (emphasis

added).)

Thus, if a whale take would occur regardless of whether

Massachusetts licenses fishermen and adopts protective

fishing gear regulations, then, under hornbook law, Mas-

sachusetts’ licensing is not a “but for” cause of any take.

Federal law, of course, does not require Massachusetts to

license and regulate fishing. If Massachusetts revoked all

of its fishing gear regulation and chose not to license

fishermen, that would not eliminate whale take; quite the

contrary, it would undoubtedly increase whale take. Con-

sequently, Massachusetts’ licensing of fishermen and its

regulation of fishing gear is not a “but for” cause of any

take of whales by fishermen.

4 The status of fishermen as ar. independent, intervening

cause would also seemingly raise the issue of whether the

causation requirement for constitutional standing is satisfied or

whether the alleged injury (take of whales) is traceable “to the

independent action cf some third party not before the court.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), quoting

Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26,

41-42 (1976).

17

This shows that the First Circuit was not imposing

take liability because of Massachusetts’ affirmative acts of

licensing and regulating fishing gear (because without

those things, more, not less take would have resulted).

Instead, take liability is being imposed because Massa-

chusetts did not regulate “enough” and ensure zero risk

of take from third party activities. Causation in this case

is based on alleged omissions or a failure to act, not on any

affirmative acts of the State - which, of course, is why the

remedy plaintiff seeks is more fishing regulation by Mas-

sachusetts, not less.

4. The First Circuit’s causation theory is also inconsis-

tent with the structure of the ESA. Section 7 of the ESA

(16 U.S.C. § 1536) requires federal agencies that issue

permits or licenses for private activities to avoid jeopardy

to listed species (id., § 1536(a)(2)); consult with federal

wildlife agencies (id., § 1536(a)(4)); and obtain biological

opinions from the federal wildlife agency which may

include incidental take authorization. (Id., § 1536(b); see

also 50 C.F.R. § 402.02 (definition of “action” to include

federal permitting and licensing).) Significantly, these

section 7 requirements apply only to federal, not State

permitting programs. This is understandable given the

greater species protection duties imposed upon the fed-

eral government in the ESA.°

5 For example, under the ESA, the federal government, but

not a State, has the duty to adopt recovery plans under section

4(f) [16 U.S.C. § 1533(f)]; to conserve species under section

7(a)(1) [16 U.S.C. § 1536(a)(1)]; and to avoid jeopardy anc the

destruction of critical habitat under section 7(a)(2) [16 U.S.C.

§ 1536(a)(2)].

Similarly, the federal government, but not a State, has

authority under the MMPA to adopt incidental take permits and

authorizations, take reduction plans, emergency regulations,

and a host of reguleitory measures to protect whales. See MMPA,

18

The First Circuit has now created a de facto section 7

system for State permitting programs through its con-

struction of the section 9 take prohibition. In operating its

fishing permit program, Massachusetts now has to

ensure, as a matter of federal law, that the activities of

third party permittees will not create the risk of any take

(which is akin to the section 7(a)(1) duty of federal per-

mitting agencies to avoid jeopardy or the section 7(a)(1)

duty of conservation). Massachusetts also is required to

seek from federal wildlife agencies and obtain incidental

take authorization to legalize Massachusetts’ fishing per-

mit program (which is arguably analogous to the section

7(a)(2) duty of federal permitting agencies to consult with

federal wildlife agencies and obtain, pursuant to section

7(b)(4), incidental take authorization for jeopardy-causing

activities). According to Massachusetts, NMFS itself

shrank from the idea that the State, as a government

regulator, must obtain incidental take authorization from

NMFS to legalize the State’s regulatory program under

the ESA. (See Pet. 7, n.4 (noting that NMFS found Massa-

chusetts’ incidental take application “unnecessary and

inappropriate”).) This is understandable given that sec-

tion 7 plainly applies only to federal, not State, permit-

ting programs.

5. The First Circuit’s “zero risk” standard against which

the legality of Massachusetts’ permitting program is to be

measured is unprecedented in the administration of the

LSA. Federal permitting is not subject to a “zero risk”

standard under section 7 of the ESA. An insistence that

remote actors ensure against any risk of a take would

have socially undesirable and counterproductive results.

section 118 [16 U.S.C. § 1387]; MMPA, section 101(a)(5)(E) [16

U.S.C. § 1371(a)(5)(E)}.

cecilia a

19

For example, manufacturers of fishing gear could be lia-

ble for a take resulting from third party use of their nets

simply because they allowed their product to enter the

stream of commerce. If States are liable for a take based

solely on their permitting function, some States might

forego regulation entirely to avoid potential liability. The

district court, in fact, noted that Massachusetts could do

just that. (See Pet. App. B-42 (“If Defendants cease exer-

cising control over the use of gillnets and lobster gear in

Massachusetts waters, then they will not be held liable,

under Section 9, for any subsequent harm caused by such

nets.”)) Thus, the expansive causation theory in this case

creates an incentive for States not to regulate to protect

whales. This, of course, leaves listed species worse off

than before.

ee

The First Circuit’s decision gives States a stark

choice: they must either reduce all risk to zero, or exit the

field to avoid take liability; ameliorative steps that fail

short of zero risk still will expose the State to ESA lia-

bility. (See Pet. App. A-22 (stating that “a single injury to

one whale is a taking under the ESA” and that Massa-

chusetts’ “efforts to minimize such entanglements are

; irrelevant”) (emphasis added).) The quest for zero risk

and the imposition of liability upon distant and remote

actors ends up being counterproductive of species protec-

tion. See generally S. Breyer, Breaking the Vicious Circle:

Towards Effective Risk Regulation (Harvard 1993) (arguing

that pursuit of zero risk may be counterproductive in

generating other risks and misallocating resources).

Because Congress did not intend such perverse species

protection incentives, the Court should review and

reverse the First Circuit’s decision.

a A. re an hn MET caching si Bit

20

CONCLUSION

For the foregoing reasons, the writ of certiorari

should be granted.

Dated: April 1998.

Respectfully submitted,

Daniet E. LUNGREN

Attorney General

Roperick E. WALSTON

Chief Assistant Attorney General

RicHARD M. FRANK

Senior Assistant Attorney General

Counsel of Record

Linus MAsourebis

Deputy Attorney General

1300 I St., Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 445-8178

Fax: (916) 327-2319

Counsel for Amicus

State of California

{Additional Counsel Listed On Inside Front Cover]

j