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