## Facts

- Richard Max Strahan sued Massachusetts environmental and fisheries officials, alleging the state’s commercial fishing licensing and permitting scheme authorized fixed-gear fishing that foreseeably entangled and harmed endangered North Atlantic right whales.
- The challenged fishing methods included gillnets and lobster pots with vertical lines in coastal waters, including areas identified as right whale critical habitat.
- Strahan sought injunctive relief requiring Massachusetts to revoke and stop issuing relevant licenses unless federal “incidental take” authorization was obtained from the National Marine Fisheries Service (NMFS).
- The district court found Strahan likely showed that the state licensing regime resulted in whale entanglements amounting to an ESA “take,” and issued a tailored preliminary injunction requiring, among other steps, applications for federal permits and the development of protective measures.
- State officials appealed the preliminary injunction; Strahan cross-appealed, challenging the denial of broader relief and dismissal of his MMPA claims.

## Issues

1. Whether state officials can be liable under the Endangered Species Act (ESA) for “takings” that occur as a foreseeable result of activities authorized by state licensing and permitting.
2. Whether the Marine Mammal Protection Act (MMPA) permits citizen suits against state officials for alleged violations, supporting jurisdiction for injunctive relief compelling an MMPA permit application.
3. Whether the district court’s ESA-based preliminary injunction exceeded equitable authority or violated the Eleventh or Tenth Amendments.
4. Whether the district court abused its discretion by denying Strahan’s requested blanket revocation/ban of licenses and by other challenged rulings raised in the cross-appeal.

## Decision

- The First Circuit affirmed that the district court could treat Massachusetts’s fixed-gear licensing scheme as likely causing an ESA “take,” because a governmental actor may be liable as a third party whose authority enables the taking.
- The court affirmed the ESA-related portions of the preliminary injunction, including orders to apply for an ESA incidental take permit, develop a proposal to restrict/modify/eliminate fixed gear in right whale critical habitat to reduce harm, and convene a working group to discuss mitigation measures with Strahan and other interested parties.
- The court vacated the portion of the injunction requiring state officials to apply for an MMPA permit and affirmed dismissal of the MMPA claims, holding the MMPA does not authorize citizen suits to enforce alleged violations.
- The court rejected Eleventh Amendment objections because the suit sought prospective relief against state officials, and rejected Tenth Amendment objections because enforcing compliance with valid federal standards did not constitute unconstitutional commandeering.
- Strahan’s cross-appeal seeking broader injunctive relief and revival of MMPA claims was largely unsuccessful.

## Legal Principles

- ESA “take” liability can reach state officials when a state regulatory scheme authorizes conduct that foreseeably “harms” or “kills” a listed species; liability is not limited to the immediate private actor.
- Once a court finds a likely ESA violation, it may issue prospective equitable relief against state officials, including ordering steps aimed at obtaining federal authorization and reducing future takes.
- The MMPA’s enforcement structure vests primary enforcement authority in the federal executive branch; absent a general citizen-suit provision, federal courts lack jurisdiction over citizen suits seeking to compel compliance by alleged violators.
- Prospective injunctive relief against state officials for ongoing violations of federal law is permissible under the Ex parte Young doctrine and does not, by itself, violate state sovereign immunity.
- Orders requiring state officials to conform state regulatory practices to federal statutory requirements do not violate the Tenth Amendment when they enforce valid federal standards that preempt inconsistent state action.

## Conclusion

The First Circuit held that Massachusetts officials could face ESA injunctive relief where state fishing licenses foreseeably enabled right whale takes, upheld tailored ESA-based requirements to pursue federal authorization and mitigation measures, and vacated MMPA-related relief because the MMPA does not provide citizen-suit jurisdiction to compel state compliance.


Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997)