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May 1, 2002


The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge.


Plaintiff Center for Biological Diversity (CBD) filed this lawsuit to prevent the use by the United States military of live fire training exercises on the island of Farallon de Medinilla (FDM) because such exercises kill and otherwise harm several species of migratory birds without a permit, in violation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703 et seq., and the Administrative Procedures Act (APA), 5 U.S.C. § 701 et seq. Defendants, the Secretary of Defense Donald Rumsfeld and the acting Secretary of the Navy, Robert Pirie, have been sued in their official capacity as the heads of the branches of the military that engage in these exercises on FDM.

On March 13, 2002, this Court granted summary judgment in favor of plaintiffs, holding that defendants' activities on FDM violate both the MBTA and the APA. The Court then ordered briefing on the issue of remedy and scheduled a hearing for April 30, 2002. The issue now before the Court is whether Congress has expressly limited this Court's traditional equitable discretion so as to require an injunction to issue here, and if not, whether this Court should exercise its discretion to enjoin defendants' activities.

Upon consideration of the parties' submissions on the issue of remedy, the oral argument of counsel, and the applicable statutory and case law, this Court holds that while it retains equitable discretion under the APA, that discretion is limited to choosing among appropriate means of ensuring compliance with the statutes being violated here. The United States asks this Court to go beyond the scope of this Court's discretion and allow it to continue violating these statutes with impunity. This Court has no authority to read into a criminal statute such as the MBTA an exception for national security or military activities where none exists. See United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 498-99, 121 S.Ct. 1711 (2001).


While the distinction between law and equity courts has long since been eliminated in our system of justice, traces of that distinction remain. Courts generally retain some amount of discretion over the creation and implementation of equitable relief. The Supreme Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61, 95 S.Ct. 2069 (1975); Sampson v. Murray, 415 U.S. 61, 88, 94 S. Ct. 937 (1974); Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 506-507, 79 S.Ct. 948 (1959). Generally when a plaintiff can prove a violation of law, there is "no separate need to show irreparable injury," as irreparable injury is "merely one possible basis for showing the inadequacy of the legal remedy." National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir. 1998).

However, when plaintiff and defendant present "competing claims of injury, the traditional function of equity has been to arrive at a `nice adjustment and reconciliation' between the competing claims.'" Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798 (1982) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587 (1944)). If such competing claims are presented, the court generally "balances the conveniences of the parties and possible injuries to them accordingly as they may be affected by the granting or withholding of the injunction." Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660(1944). "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it." Hecht Co., 321 U.S. at 329.

These general equitable principles reflect a hundred years of jurisprudence and Congress is presumed to legislate against this background. See, e.g., Weinberger, 456 U.S. at 312. However, Congress is not without the ability to restrict federal courts' traditional equitable role. Congress may "intervene and guide or control the exercise of the courts' discretion, but we do not lightly assume that Congress has intended to depart from established principles." Id. In Porter v. Warner Holding Co., the Supreme Court explained:

Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. `The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' Brown v. Swann, 10 Pet. 497, 503 [9 L.Ed. 508] . . .

328 U.S. 395, 398, 66 S.Ct. 1086 (1946); see also Weinberger, 456 U.S. at 312; Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279 (1978) ("TVA"). A trial court's discretion "is displaced only by a clear and valid legislative command." United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 496, 121 S.Ct. 1711 (2001) (citations omitted).

I. Has Congress Limited This Court's Traditional Equitable Discretion?

A. Which law to consider?

The threshold question facing this Court is what statute to consider in determining whether Congress has limited this Court's traditional equitable discretion. This Court held on March 13, 2002, that defendants were violating the APA's prohibition on agency action otherwise in violation of the law, 5 U.S.C. § 706, by failing to comply with the MBTA's prohibition on killing migratory birds without a permit, 16 U.S.C. § 703. Plaintiff argues that this Court should consider the language of both § 706 of the APA and § 703 of the MBTA because "both are applicable to this case." Plf's Supp. Mem. of 3/27/02 at 8. Defendants argue that only the APA should be evaluated because the injunctive relief requested by plaintiffs is only authorized by the APA.

Here, no private right of action or injunctive relief is available for a violation of the MBTA. Plaintiff's right to sue is provided only by § 702 of the APA, as is the right to request injunctive relief. Section 702 of the APA states:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of ...

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