# Amicus Curiae Brief — Coates v. Strahan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 978

## Text

, \ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2363%3A06. Public record. Not legal advice.