Full opinion text
MEMORANDUM WOODLOCK, District Judge. I. A conservationist contends that several officials of the Commonwealth of Massachusetts have violated the Endangered Species Act (“ESA”) and the Marine Mammal Protection Act (“MMPA”) by authorizing the use of “gillnets” and “lobster gear” by commercial fishing boats in Massachusetts waters, including areas designated as a “critical habitat” for the endangered Northern Right whale, and by allowing whale-watching ships to approach whales closely. Defendants move to dismiss and/or for summary judgment. Plaintiff seeks a preliminary injunction and a temporary restraining order. Plaintiff has shown a sufficient likelihood that endangered whales are periodically “taken” through entanglements with gillnets and lobster gear in waters regulated by the Defendants, who have not obtained an ESA or MMPA incidental take permit from the National Marine Fisheries Service (“NMFS”). Because this showing is sufficient, I have denied the Defendants’ motion for summary judgment on Count1, which alleges a violation of Section 9 of the ESA through entanglements in gillnets and lobster gear. In addition, I have denied the Defendants’ motion for summary judgment on Count II, which alleges a “taking” through habitat modification. But because Plaintiff has no cause of action under the MMPA, I have granted the motion to dismiss Count III. Finally, I have granted the Defendants’ motion for summary judgment on Count IV, which alleges a violation of Section 9 through pursuit and harassment by whale-watch vessels, because there is no indication that Defendants will repeat their conduct of 1989, when they allowed approaches closer than 500 yards and because the Plaintiff has not established that whales are harmed by approaches at 500 yards or more. Having found a likelihood of success by Plaintiff on Counts I and II and an adequate showing of harm for purposes of the ESA, I will also fashion interlocutory injunctive relief although as detailed infra, the relief differs from that sought by the Plaintiff. II. Procedural History The Plaintiff, Richard Max Strahan, the national campaign director of GreenWorld, filed this complaint on April 21,1995 alleging four counts of violations of the ESA and the MMPA. Three defendants are named in the complaint: Trudy Coxe, Secretary of the Massachusetts Executive Office of Environmental Affairs (EOEA); John Phillips, Commissioner of the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement (DFW); and Philip Coates, Director of the Massachusetts Division of Marine Fisheries (DMF). On May 9, 1995, Strahan filed an Application for a Temporary Restraining Order (TRO) and Motion for a Preliminary Injunction. The defendants moved to dismiss or in the alternative for summary judgment. On June 15, 1995, I held a hearing on the application. At this hearing, I addressed a number of issues. First, concerning jurisdiction, Strahan asserted that he had provided the requisite notice to the Secretary of Commerce approximately two years before filing this suit of his intent to sue. I instructed Strahan to file an affidavit that he had, in fact, provided such notice. Second, regarding Strahan’s standing to bring suit, I held that I would take judicial notice of Strahan’s statements during his deposition in another case involving the Northern Right whale, Strahan v. Linnon, slip op., No. 94-11128-DPW (as corrected May 19,1995), unless the Defendants filed an objection by June 21, 1995. Third, I also directed Strahan to file affidavits and other supporting documents regarding his allegations of Northern Right whale entanglement in fixed fishing gear. I subsequently allowed a motion of the Conservation Law Foundation, Inc. (CLF) for leave to file an amicus curiae brief in this case. In its amicus curiae brief, CLF attached affidavits from Charles Mayo, David Mattila, and Eleanor Dorsey regarding the impact of fixed fishing gear on Northern Right whales and recommendations to reduce this impact. Strahan thereafter moved for these amicus curiae affidavits to be re-entered into the record on his behalf. I allowed that motion. At a status conference held on March 13, 1996, Strahan submitted a second application for a TRO and moved for an emergency preliminary injunction enjoining the defendants from issuing any new permits in Cape Cod Bay until June 1, 1996, and from revoking any existing permits. At this conference, I also directed the Defendants to submit affidavits detailing any efforts that they have undertaken regarding the Northern Right whale. By endorsements on March 29, 1996,1 granted in part and denied in part the Defendants’ motions to dismiss and for summary judgment and noted that I could not grant a preliminary injunction in the form sought by Plaintiff. I indicated that a memorandum of decision would follow. This is that Memorandum. At a status conference on April 12, 1996,1 solicited statements from the Defendants regarding interim measures which could be taken to provide further protections to the whale populations and established a briefing schedule for additional submissions, in light of Supreme Court developments regarding the Eleventh Amendment. I heard argument principally on the Eleventh Amendment issue on May 21, 1996, and received a number of submissions thereafter. The development of this case has been extremely difficult in large part because of Plaintiff’s pro se status. Unlike the companion Linrum litigation, see note 16 infra, where Plaintiff is now assisted by very competent counsel and orderly case management has been possible, here the Plaintiffs solo involvement has complicated matters considerably. The Plaintiff, while pressing a case which I find to have significant merit, is a highly aggressive and abrasive individual whose conduct has generated a number of complaints and requests by Defendants for sanctions against him. I have sought to avoid being distracted by such ancillary matters in order to address the merits of the ease. Nevertheless, I am sorely aware that the PlaintifPs claims raise the prospect of substantial disruption to the fishing industry in Massachusetts and that Plaintiff is not by training or disposition capable of accommodating competing views. Consequently, I have moved diffidently in attempting to shape a means for framing and resolving this matter. The interlocutory injunctive relief detailed herein is designed to formalize and advance the necessary conversations which must take place to resolve the claims presented here. III. Factual and Regulatory Background Strahan, an officer of GreenWorld, Inc., brings suit “on behalf of’ the Northern Right whale (Eubalaena glacialis); the Humpback whale (Megaptera novaeangliae); the Fin or Finback whale (Balaenoptera physalus); the Blue whale (Balaenoptera musculus); the Sei whale (Balaenoptera borealis); the Minke whale (Balaenoptera acutorostrata); and the Harbor porpoise (Phocoena phocoe-na ). With the exception of the Minke whale, all of the whales on this list have been listed as endangered species by the federal government. See 50 C.F.R. § 222.23(a). In 1993, NMFS proposed to list the Gulf of Maine population of the Harbor porpoise as “threatened.” 58 Fed.Reg. 3,108 (Jan. 7, 1993). The Complaint and other submissions focus on the Right whale, and briefly describe injuries to Humpback, Fin and Blue whales. A. Whales in Massachusetts Waters: Population and Behavioral Patterns 1. Right Whales Right whales are the most endangered of the large whales, despite the fact that they have been protected from commercial whaling since 1935. See Final Rule: Designated Critical Habitat; Northern Right Whale, 59 Fed.Reg. 28,793 (1994) (NMFS); cf. Proposed Rule: Designated Critical Habitat; Northern Right Whale, 58 Fed.Reg. 29,186 (1993). There are only approximately 300 to 350 individual Right whales in the western North Atlantic, and the eastern North Atlantic population may be nearly extinct. 59 Fed.Reg. 28,793. Many human activities can disrupt the Right whale, including vessel activities, commercial fishing, and pollution. 59 Fed.Reg. 28,796-97. The vast majority of Northern Right whales are present in Massachusetts waters only during spring feeding. The whales “spend the spring and early summer off the coast of New England, then in the latter part of the summer and fall, move to the waters off southern Canada.” (NMFS, Right Whale Recovery Plan, TRO Ex. 1 at 5.) TRO Ex. 1 at 6 (citation omitted) (brackets used where portions of text have been obscured). With the exception of the summer of 1986, “[n]orthem right whales are rarely present in Cape Code Bay after May 15.” Id. at 10. [During] March to May most sightings are in the Cape Cod-Massachusetts Bay area and the [Great] South Channel on the western edge of the Georges Bank. Feeding activity is the most [frequently] seen behavior at this time. Differences in distribution observed each year are ... due to prey abundance. It has been suggested that most of the northern right whale population moves through this area en route to summer feeding grounds to the north. In an “Executive Summary” submitted to the Massachusetts legislature, the Defendants offered the following explanation of the “Importance of Massachusetts Waters to the Northern Right Whale”: • Approximately half of all known right whale calves in the North Atlantic use Massachusetts waters sometime in their first year of life. They are usually brought to Massachusetts in the spring when they are between 3 and 6 months old. • Between 13% and 20% of all known North Atlantic right whales (31 to 49 individuals) were documented in the Massachusetts region annually between 1983 and 1986. • At least 117 different right whales have been identified in the Massachusetts Region since 1975. This represents about half of all individuals identified in the North Atlantic Right Whale Catalogue. • Right whales remained in Massachusetts waters an average of 16.5 days (range of 1 to 84 days) in the years 1983 to 1985. In 1986 an apparent change in food availability increased the average residence time to 38 days (range of 1 to 101 days). • The primary importance of Massachusetts waters, particularly around Cape Cod Bay, appears to be as a feeding area. In most years there is a seasonal peak in abundance in April, with substantial numbers also occurring in March and May. (Right Whales in Massachusetts Waters, An Executive Summary, TRO Ex. 6 at 2.) 2.Humpback Whales Humpback whales “are probably the fourth most numerically depleted large cetacean worldwide,” behind the Right, Blue, and Bowhead whales. National Marine Fisheries Service, Recovery Plan for the Humpback Whale at 1 (1991) (hereinafter “Humpback Whale Recovery Plan”). The Western North Atlantic population of Humpback whales is approximately 5,505 in number. See Approaching Marine Mammals, 57 Fed.Reg. 34,101, 34,102 (proposed Aug. 3, 1992); cf. Humpback Whale Recovery Plan at 16. On the East Coast: Humpback whales regularly inhabit [U.S. waters] during spring, summer and autumn. They feed opportunistically all along the continental shelf, but the largest numbers occur from mid-April to mid-November in the western section of the Gulf of Maine, particularly the Great South Channel, Stellwagen Bank and Jeffreys Ledge; and also from July through October in the eastern section around the mouth of the Bay of Fundy. Humpback Whale Recovery Plan at 13 (citation omitted). 3.Fin Whales NMFS has offered the following summary of Fin whale status: Although the status of the stocks of fin whales is unknown, it is believed to be depleted relative to historic levels, but abundant relative to other large whale species. The total world population size is about 120,000. However, no similar population exists in U.S. waters. Fin whales are included in the species of large whales that are the object of whale watching activities on Stellwagen Bank in Massachusetts Bay. Avoidance behavior by fin whales, defined as erratic changes in course, speed, behavior or respiratory rhythm, has been shown to be associated with vessel activity in Cape Cod and Massachusetts Bay. Approaching Marine Mammals, 57 Fed.Regs. 34,101, 34,102 (proposed Aug. 3,1992). Stra-han has not submitted any material concerning the Fin whale population, or the seasons in which Fin whales may be found in Massachusetts waters. 4.Blue Whales The Humpback Whale Recovery Plan suggests that Blue whales are more numerically depleted than Humpbacks. Humpback Whale Recovery Plan at 1. Strahan has not provided any other information concerning the population of Blue whales or their presence in Massachusetts waters. NMFS did not estimate the minimum population of the Blue whales in its draft stock assessments for marine mammals. See Marine Mammals, 59 Fed.Reg. 40,527 (Aug. 9,1994). 5.Sei Whales Strahan has not provided any information concerning the population of Sei whales and whether they visit Massachusetts waters. 6.Minke Whales The Minke whale has not been listed as endangered or threatened. As will be discussed below, Strahan’s only cause of action lies under the ESA, which does not cover the Minke whale. 7.Harbor Porpoise NMFS has proposed that the Harbor Porpoise be listed as “threatened.” 58 Fed.Reg. 3,108 (Jan. 7, 1993). Section 9 of the ESA does not protect “threatened” species, only “endangered” species. See 16 U.S.C. § 1538(a)(1)(B) (unlawful to take any endangered species, listed under 16 U.S.C. § 1533, within the United States or the territorial sea of the United States). Consistent with its authority under Section 4(d) of the ESA, 16 U.S.C. § 1538(d), the Fish and Wildlife Service (FWS) has expanded Section 9 to protect “threatened” species as well as “endangered” species. See 50 C.F.R. § 17.31(a) (with certain exceptions, “all of the provisions in § 17.21 [which includes prohibitions on takings] shall apply to threatened wildlife”). It does not appear that NMFS has issued a similar regulation. In 1990, NMFS rejected a suggestion from the Department of the Interior that it do so, stating: The prohibitions in section 9 and exceptions in section 10 of the ESA apply only to endangered species of fish and wildlife. When a species is listed as threatened, protective regulations must be issued under section 4(d) of the ESA to provide for the conservation of the species. These regulations can establish the same requirements for threatened species as the ESA provides for endangered species or they can be less restrictive, as appropriate. Therefore, making these regulations apply to all threatened marine species is not appropriate. Permits for Incidental Taking of Endangered Marine Species, 55 Fed.Reg. 20,603, 20,603-04 (May 18, 1990). See 50 C.F.R. pt. 227 for NMFS regulations for threatened species of marine mammals and reptiles. Cf. Notice of Interagency Cooperative Policy for Endangered Species Act Section 9 Prohibitions, 59 Fed.Reg. 34,272 (July 1, 1994) (NMFS and FWS) (“Under the [ESA] and regulations, it is illegal for any person ... to take ... any endangered fish or wildlife species and most threatened fish and wildlife species.”) (emphasis added). In addition, although NMFS has proposed that the Harbor porpoise be listed as threatened, the porpoise has not yet been so listed, cf. Proposed Rule Stage, 60 Fed.Reg. 23,-160, 23,180 (proposed May 8, 1995) (NMFS) (proposed designation of critical habitat for Gulf of Maine population of Harbor porpoise) (noting “[t]he listing has not been made final to date”); 16 U.S.C. § 1583(a)(2). Thus, Strahan has not stated an ESA claim on behalf of the Harbor porpoise. B. Federal Efforts to Protect the Whales Endangered whales, such as Right, Humpback, Fin, and Blue whales, are protected by the Endangered Species Act and by the Marine Mammal Protection Act. Both Acts prohibit the “taking” of endangered whales. See 16 U.S.C. § 1538(a)(1)(B) (ESA); 16 U.S.C. § 1372(a)(2)(A) (MMPA). The ESA defines “take” as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The MMPA defines “take” as “harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. § 1362(13). As offices within the Department of the Interior and the Department of Commerce, respectively, the United States Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (which is part of the National Oceanic and Atmospheric Administration (“NOAA”)) share responsibilities under the MMPA and ESA. See 16 U.S.C. §§ 1532(15), 1540 (ESA); 16 U.S.C. §§ 1362(12), 1377 (MMPA); Marine Mammal Protection Act Amendments of 1994, S.Rep. No. 220,103d Cong., 2d Sess. 2, reprinted in 1994 U.S.C.C.A.N. 518, 519; Incidental Take of Endangered, Threatened and Other Depleted Marine Mammals, 54 Fed.Reg. 40,338 (1989). “NMFS is responsible for species of the order Cetacea (whales and dolphins) and the suborder Pinnipedia (seals and sea lions) except walrus. FWS is responsible for the dugong, manatees, polar bear, sea and marine otters and walrus.” 54 Fed.Reg. at 40,338 (1989); see also 16 U.S.C. § 1362(12). Consistent with its responsibilities under the ESA and MMPA, NMFS is involved in various efforts to protect endangered whales. 1. Interim Commercial Fishing Permits NMFS recently published notice in the Federal Register that it would not issue interim incidental taking permits to vessels engaged in certain fisheries for the Western North Atlantic stock of the Northern Right, Humpback, and Fin whales. Taking of Threatened or Endangered Marine Mammals Incidental to Commercial Fishing Operations; Interim Permit, 60 Fed. Reg. 45,399 (NMFS) (Aug. 31, 1995). This was because NMFS could not find that the incidental takings of these species would have a negligible impact on their survival. Id. As a result, “[n]o takes of these endangered or threatened marine mammal stocks [including the right, humpback, and fin whales] incidental to commercial fishing are allowed.” Id. 2. Recovery Plans The ESA requires that “[t]he Secretary shall develop and implement [recovery] plans ... for the conservation and survival of endangered species and threatened species ... unless he finds that such a plan will not promote the conservation of the species.” 16 U.S.C. § 1533(f)(1). In 1991, a Recovery Plan for the Northern Right whale was prepared for NMFS. (TRO Ex. 1 (hereinafter “Right Whale Recovery Plan”)). NMFS adopted the plan on March 13, 1992. 57 Fed.Reg. 8,862 (Mar. 13, 1992). NMFS also approved a Recovery Plan for the Humpback whale at the same time, see 57 Fed.Reg. 8,862; Humpback Whale Recovery Plan. It does not appear that a Recovery Plan has been prepared for the Fin, Blue or Sei whales. The Right Whale Recovery Plan explains the danger from fishing gear as follows: Since 1975, twelve encounters with fishing gear have been recorded in the western North Atlantic. Analyses of photographic data from the New England Aquarium’s photographic catalog show that 58 percent of the catalogued northern right whales have scars and injuries around the tail stock indicative of rope and net cuts. Photographs of one whale that had netting wrapped around its tail stock for more than 4 years illustrate the extensive chafing and scarification which is characteristic of entanglement survivors. Entanglement and entrapment in gillnets and lines from lobster pots, seines, and fish weirs have been recorded. Three whales are known to have died from entanglements. However, one whale, Stars, lost the rope that had been caught in her baleen from 1987-1990 and gave birth to a calf in 1991. Right Whale Recovery Plan at 11 (citations omitted). The Humpback Whale Recovery Plan also describes entanglements as a threat: Entrapment and entanglement in active fishing gear is the most frequently identified source of human-caused injury or mortality to humpback whales. Humpback whales are large enough to break through netting before becoming entangled, but they occasionally entangle in the lead or anchor ropes which they cannot break. Drowning or starvation may result if humans do not intervene to free the whales.... The most significant known entanglement problem occurs in northeastern continental shelf waters around Newfoundland, Canada, where humpbacks are entrapped during June and July in traps and gillnets set for cod; and gillnets for salmon, lumpfish, herring, and various groundfish. The numbers of humpbacks entrapped per year have ranged from 26 to 68.... From 1976-1986, the NMFS Northeast Fisheries Laboratory reported 18 humpback whale entanglements in fishing gear in northeastern U.S. continental shelf waters. Gillnets caused 39% of the entanglements; other gear included unspecified ropes and lines, scallop gear, and seine gear. Nine animals were freed by volunteers, 6 were known to have died, and 3 were never resighted after disappearing with gear on them. Humpback Whale Recovery Plan at 25 (citations and scientific names omitted). Because “entanglement is a major cause of injury and mortality in northern right whales,” one objective of the Right Whale Recovery Plan is to “[rjeduce or eliminate injury and mortality caused by fisheries and fishing gear.” Id. at 24. The Right Whale Recovery Plan suggests that: Guidelines, restrictions or prohibitions on types or placement of fishery gear should be considered on a regional and temporal basis to minimize or eliminate their impact on northern right whales. Current evidence indicates that gillnets are the predominant fishing gear found in all high-use areas that pose an entanglement threat to northern right whales. Offshore lobster pot fishing gear in the Bay of Fundy could also be a new threat to northern right whales. These fisheries should be restricted during the period when northern right whales are likely to be present. Right Whale Recovery Plan at 24. For the Cape Cod and Massachusetts Bays in particular, the Right Whale Recovery Plan states: Gillnets are common and have trapped northern right whales and other whale species. These nets threaten northern right whales from March to May, after which whales and nets may be more scattered. Regulations to restrict the use of gillnets during periods of high northern right whale use of these waters is a high priority.... Id. at 25. The Right Whale Recovery Plan also specifies that collisions with ships are a significant cause of whale mortalities. Id. at 9-10. There is less certainty, however, concerning “the effects of vessel disturbance on either individual animals or segments of the population.” Id. at 10. Observations ... in the Cape Cod Bay area indicated that northern right whales usually did not react to low amplitude engine noise or minor vessel maneuvering. Northern right whale responses to vessels are apparently dependent on the behavior in which they are engaged. Courtship and surface feeding are examples of behaviors during which northern right whales appear unresponsive to the approach of boats. Cows with calves and single long-diving whales appear to be more sensitive to sound, and have been observed to avoid boats. Northern right whale areas in the Great South Channel and Bay of Fundy are located in or near shipping lanes. The effects of interactions in these areas are not documented. However, despite the extreme harassment and hunting during the historic exploitation period, right whales were observed returning to the same areas. Right Whale Recovery Plan at 10 (citations omitted); see also Humpback Whale Recovery Plan at 29 (indicating that effect of vessel operations is uncertain). 3. Approach Distances The ESA gives the Secretary of Commerce authority “to promulgate such regulations as may be appropriate to enforce this Act,” 16 U.S.C. § 1540(f). One method that NMFS has employed to protect endangered whales is the establishment of minimum approach distances. a. Humpback Whales NMFS’ earliest efforts to create a minimum approach distance were directed at the Humpback whale. NMFS reviewed its efforts in 1992: In 1979, NMFS issued a Notice of Interpretation of harassment for humpback whales in Hawaii and defined harassment as substantial disruption of whale behavior. Inclusion of distance limits was seen as a compromise for enforcement purposes. However, by 1985, the Notice was losing its effectiveness as an enforcement tool because harassment cases were difficult to prosecute. Enforcement agents had to document substantial disruption of normal whale behavior patterns. In response to the problem of enforcing the Notice, NMFS published an interim rule that includes a 100-yard minimum approach distance to humpback whales and a 300-yard minimum distance for areas that have been designated as cow/ealf pair areas. The whale watching industry in Hawaii continues to grow, and NMFS has successfully prosecuted cases of harassment since the interim rule went into effect. Although the continued growth of the thrilleraft industry in an area where humpback whales breed is cause for concern, NMFS enforcement agents believe that several highly publicized cases (one involving an- $11,000 civil penalty) has actually reduced the general level of harassment of humpback whales. Approaching Marine Mammals, 57 Fed.Reg. 34,101, 34,102 (proposed Aug. 3, 1992). See also Interim Rule, Approaching Humpback Whales in Hawaiian Waters, 52 Fed.Reg. 44,912 (Nov. 23, 1987) (codified at 50 C.F.R. § 222.31 (1994)). By contrast, NMFS recommended a 100 foot approach limit for Humpback whales in New England waters, explaining that the North Atlantic population of Humpback whales was “at or above its initial (pre-exploitation) population size,” and that Humpback whales off Cape Cod appeared to have “acclimated to the presence of vessels.” 52 Fed.Reg. at 44,913. As part of the Marine Mammal Protection Act Amendments of 1994, Congress modified the NMFS approach limit as follows: In waters of the United States surrounding the State of Hawaii, it is lawful for a person subject to the jurisdiction of the United States to approach, by any means other than an aircraft, no closer than 100 yards to a humpback whale, regardless of whether the approach is made in waters designated under section 222.31 of title 50, Code of Federal Regulations, as cow/calf waters. Pub.L. No. 103-238,108 Stat. 532, 559 (1994). Congress also terminated subsection (b) of 50 C.F.R. § 222.31, which set approach limits in cow/calf waters. Id. NMFS issued a final rule implementing these changes on January 19,1995. Approaching Humpback Whales in Hawaiian Waters, 60 Fed.Reg. 3,775 (1995); 50 C.F.R. § 222.31. b. Right Whales On December 27, 1994, NMFS issued an advance notice of proposed rulemaking to solicit public comment on a petition by GreenWorld to establish a 500 yard “protection zone” around every Right whale and a 100 yard “protection zone” around other whales. North Atlantic Right Whale Protection, 59 Fed.Reg. 66,513, 66,514 (1994). On March 3, 1995, NMFS reopened the period for public comment until April 3, 1995. North Atlantic Right Whale Protection, 60 Fed.Reg. 11,951 (1995). On May 8, 1995, NMFS published another advance notice of proposed rulemaking concerning the protection zone. 60 Fed.Reg. 23,160, 23,184 (1995). On August 7, 1996, NMFS filed for publication in the Federal Register a proposed rule to prohibit all approaches within 500 yards of Northern Right whales, whether by vessel, aircraft, or other means. Written comments must be received by November 5, 1996. 61 Fed.Reg. 41,116 (Aug. 7,1996). c. All Whales In 1992, NMFS issued a proposed rule setting a minimum approach distance of 100 yards for all whales and 50 yards for dolphins and porpoise. Approaching Marine Mammals, 57 Fed.Reg. 34,101, 34,103 (proposed Aug. 3,1992). NMFS explained: NMFS believes the public can benefit from seeing marine mammals in their natural environment; however, the public must be aware that these animals, especially whales, are vulnerable to injury and disturbance by people, vessels and aircraft. Many whales are slow-moving, can escape only by diving, and in some regions are distributed in limited areas. Vessel traffic may subject whales to impacts ranging from displacing cow/calf pairs from near-shore waters to expending increased energy when feeding is disrupted or migratory paths rerouted. 57 Fed.Reg. at 34,101. NMFS withdrew its proposal for a general approach limit in March of 1993. 57 Fed. Reg. 16,519 (Mar. 29, 1993). On April 26, 1993, NMFS indicated that it would be issuing a final rule establishing a minimum approach distance in May of 1993, 58 Fed.Reg. 24,152, 24,155. In June of 1994, however, NMFS announced that it was not considering broad-based whale watching regulations but only minimum approach distance specific to Northern Right whales. 59 Fed.Reg. 28,993, 28,800 (June 3,1994). 4. Critical Habitats The ESA specifies that the appropriate Secretary, “to the maximum extent prudent and determinable ... shall, concurrently with making a determination ... that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat....” 16 U.S.C. § 1533(a)(3). Designation of a critical habitat “provides notice to Federal agencies and the public that a listed species is dependent on these areas and its features for its continued existence....” Id.; 59 Fed.Reg. 28,793 (1994). Designation of a critical habitat relates to the consultation duties of federal agencies under Section 7 of the ESA. See 16 U.S.C. § 1536(a). Usually, it has no direct effect on private entities or state agencies. On June 3,1994, NMFS designated a critical habitat for the Northern Right whale in portions of the Cape Cod Bay, the Stellwagen Bank, the Great South Channel, and in the Southeast United States. See 59 Fed. Reg. 28,793, 28,797-28,798 (1994). There is no indication on the record that NMFS has designated a critical habitat in Massachusetts waters for the Humpback, Blue, Fin, or Sei whales. C. The Role of the Defendants 1. General Responsibilities Chapter 130 of the Massachusetts General Laws vests the Division of Marine Fisheries (“DMF”) with broad authority to regulate fishing in the coastal waters of the Commonwealth. Pursuant to this authority, DMF requires that virtually all commercial fishing vessels receive a permit from DMF before they may take fish, including shellfish, from coastal waters. See 322 C.M.R. §§ 7.01-7.05, 8.08. According to Defendant Coates: The marine fishery jurisdiction of the Commonwealth extends to those waters within an area encompassed by the shoreline of Massachusetts, in the case of bays a straight baseline from shore to shore, extending three nautical miles out to sea. Included in this area are all the waters of the Nantucket Sound. Federal authority over marine fishery resources beyond three miles is exercised by the National Marine Fisheries Service (NMFS). (Coates Aff. ¶¶ 5-6.) See also Mass.Gen.L. ch. 130, § 1 (defining “coastal waters” as “all waters of the commonwealth within the rise and fall of the tide and the marine limits of the jurisdiction of the commonwealth, but not waters within or above any fishway or dam”); 322 C.M.R. § 8.02 (coastal fisheries conservation and management) (defining “coastal waters” as “those waters which lie three geographical miles from the shoreline”). DMF is a division of the Department of Fisheries, Wildlife and Environmental Law Enforcement, which is part of the Executive Office of Environmental Affairs (“EOEA”). See Mass.GenL. ch. 21A, §§ 2, 7, 8. The Department of Fisheries, Wildlife and Environmental Law Enforcement also contains the Division of Law Enforcement and the Division of Fisheries and Wildlife. See Mass. Gen.L. ch. 21, §§ 6, 7. According to Defendant Coates, the Division of Law Enforcement “has authority to enforce the statutes and regulations governing marine fisheries,” (Coates Aff. ¶ 4), and the Division of Fisheries and Wildlife “has authority over all endangered species of Massachusetts including marine mammals,” (Coates Aff. ¶3). Cf Mass.Gen.L. ch. 21, § 6A (duties of division of law enforcement). 2. Gillnets and Lobster Gear The Division of Marine Fisheries has limited the use of gillnets and lobster gear in certain areas. See 322 C.M.R. § 4.09 (use of gillnets south and west of Cape Cod), § 4.11 (use of gillnets in Massachusetts Bay), § 4.13 (fixed gear marking and maximum length requirements), § 6.13 (lobster trap limit), § 8.10 (fixed gear restrictions). DMF has set a maximum total continuous length of 24,000 feet for gillnets and 2,000 feet for lobster pot trawls. See 322 C.M.R. § 4.13(3). In 1994, in response to the alarming depletion of the Harbor porpoise, DMF ordered that all sink gillnets be removed from coastal waters north of Cape Ann every November and from the Massachusetts Bay and Cape Cod Bay every March. DMF Rules Update (Nov. 2,1994), TRO Ex. 7. 3. Right Whale Buffer Zone DMF has established a 500-yard “buffer zone” for Northern Right whales in Massachusetts waters. 322 C.M.R. §§ 12.00— 12.05 (1993). Strahan claims, without providing any supporting evidence thereof, that Defendants have refused to enforce the buffer zone regulation. (Amended Mem. at 11 n. 2). In any event, the Eleventh Amendment bars suits in federal court alleging violations of state laws by state officials. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984). Moreover, this claim was not raised in the Complaint. Thus, I do not consider it in ruling on the pending motions. 4. Whale Watch Vessels Neither DMF nor any agency in the Executive Office of Environmental Affairs regulates the general activities of whale-watch vessels. (Coates Aff. ¶ 10.) Strahan claims, however, that whale watch vessels have been granted an exemption from the buffer zone requirement and allowed to approach to “a distance of at least 100 feet.” (Complaint ¶ 65; see also Amended Complaint ¶ 65 (“to within a distance of 100 feet”).) Coates admits he has “issued a limited number of scientific research permits to some whale watch vessels exempting them from the 500 yard buffer zone surrounding right whales for scientific research purposes upon application.” (Coates Aff. ¶ 11.) Strahan alleged, in his Complaint, that “[t]he authorization of the pursuit of Northern Right Whales by Defendants to the Dolphin Fleet, resulted in the death of a baby whale in September of [1989] from being struck by vessels and injured by propellers.” (Complaint ¶ 65; see also Amended Complaint ¶ 65.) Strahan acknowledges, however, that “the Defendants has [sic] yet to issue any subsequent per-mits_” (Complaint & Amended Complaint ¶ 65.) IV. Jurisdiction and Standing I must address the preliminary matters of jurisdiction and standing in detail before turning to the substance of the Defendants’ motion for summary judgment and Strahan’s motion for a preliminary injunction. A. Private Rights of Action The first question to be answered is whether the complaint states a cause of action which may be maintained by a private party. Strahan claims violations of the Endangered Species Act and the Marine Mammal Protection Act. There is no citizen suit provision under the MMPA, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., does not apply to state officials such as the Defendants. See 5 U.S.C. § 701(b)(1) (“‘agency’ means each authority of the Government of the United States ...”). Thus, Strahan’s claims under the MMPA, which are raised in Count III of his Complaint, must be dismissed for lack of jurisdiction. The ESA, by contrast, expressly authorizes citizen suits for injunctive relief. With certain exceptions, any person may commence a civil suit on his own behalf — (A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.... 16 U.S.C. § 1540(g)(1); see also 16 U.S.C. § 1540(c). B. Notice of Suit One of the prerequisites to an ESA citizen suit is that the appropriate Secretary be given notice and the opportunity to initiate an enforcement action before a citizen suit is filed. See 16 U.S.C. § 1540(g)(2)(A)(i). The rule provides that no suit may be commenced “prior to sixty days after written notice of the violation has been given to the Secretary [of Commerce or of the Interior], and to any alleged violator of any such provision or regulation[.]” The only exception to this requirement is for situations involving “an emergency posing a significant risk to the well-being of any species of fish or wildlife or plants.” 16 U.S.C. § 1540(g)(2)(C). In such cases, suit may be brought “immediately” after the Secretary has been given notice. Id. Strahan has submitted an unsigned copy of a letter dated February 15, 1995, which purports to provide notice to one of the defendants — Trudy Coxe, Secretary of the Executive Office of Environmental Affairs — that Strahan intends to bring suit against all three defendants. (Complaint, Ex. 1.) At the June 15, 1995, hearing, Defendants represented that they had received such notice. Nevertheless, they contend, correctly, that the letter to Coxe does not indicate that the Secretary of Commerce was notified of the Defendants’ alleged ESA violations. Although one court has waived the sixty-day notice requirement, see Sierra Club v. Block, 614 F.Supp. 488, 492 (D.D.C.1985), other courts, including one in this Circuit, that have addressed the issue have found the notice requirement to be jurisdictional. See Maine Audubon Soc’y v. Purslow, 672 F.Supp. 528 (D.Me.1987) (Cyr, D.J.) aff'd 907 F.2d 265 (1st Cir.1990) (affirming imposition of monetary sanctions against counsel who filed suit one day after giving notice to defendants and secretary of the Interior); Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1072 (9th Cir.1996); Lone Rock Timber Co. v. United States Dep’t of Interior, 842 F.Supp. 433, 440 (D.Or.1994); Building Indus. Ass’n of S. California, Inc. v. Lujan, 785 F.Supp. 1020 (D.D.C.1992); cf. Hallstrom v. Tillamook County, 493 U.S. 20, 31-33, 110 S.Ct. 304, 311-12, 107 L.Ed.2d 237 (1989) (holding failure to satisfy similar notice requirement under Resource Conservation and Recovery Act warranted dismissal). Thus, I informed Strahan, during the hearing on June 15, 1995, that he must prove that he provided notice to the Secretary of Commerce before filing his Complaint or his suit would be dismissed, without prejudice, for lack of jurisdiction. In his Affidavit of June 22, 1995, Strahan states: “Over two years ago, in the fall of 1992, I sent a notice of intent to bring suit under the Endangered Species Act to the Defendants.... At the same time, I sent a copy of this notice to the National Marine Fisheries Service’s national office in Silver Spring, MD.” (Second Strahan Aff. at 1.) Strahan did not provide any documentation to support his claim at that time. On August 24, 1995, however, Strahan provided an affidavit, attaching a copy of the notice of intent dated August 30,1992. Defendants move to strike Strahan’s Affidavits, on three grounds. They argue that the best evidence rule, Fed.R.Evid. 1002, requires that the original letter to NMFS, or a certified copy, be produced to prove its contents. (Def.Strike Mem. at 4 n. 5.) Rule 1002 provides: “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.” Under Rule 1004, however, the original is not required if it has been lost or destroyed, or if it cannot be obtained “by any available judicial process or procedure.” Fed.R.Evid. 1004. As the Advisory Committee explained, “[b]asically the rule requiring the production of the original as proof of contents has developed as a rule of preference: if failure to produce the original is satisfactorily explained, secondary evidence is admissible.” Fed.R.Evid. 1004 advisory committee’s note. Here, Strahan states that he mailed the original to NMFS. Thus, it is not readily available to him, and NMFS in Silver Spring, Maryland, is not within the jurisdiction of this Court. In addition, the precise contents of the letter need not be established. All that is required is competent evidence that Strahan notified the Secretary of Commerce of his intent to bring suit against the Defendants. As the First Circuit has explained, “[n]o evidentiary rule ... prohibits a witness from testifying to a fact simply because the fact can be supported by written documentation.” R & R Associates, Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st Cir.1984). Cf. Flick v. Borg-Wamer Corp., 892 F.2d 285, 288 (3d Cir.1989) (“It is elementary that the loss of a copy of a document does not foreclose establishing its contents through the testimony of the draftsman_”); Fed. R.Evid. 1002 advisory committee’s note (“an event may be proved by nondocumentary evidence, even though a written record of it was made.”). Thus, the best evidence rule does not require that Strahan’s affidavit be stricken. Defendants do not raise the more fundamental objection that notice to NMFS in Silver Spring may not qualify as notice to the Secretary of Commerce under 16 U.S.C. § 1540(g)(2)(i). For example, in Save the Yaak Committee v. Block, 840 F.2d 714, 721 (9th Cir.1988), the court held that a letter sent to the FWS regional director, but not to the Secretary of the Interior, did not satisfy the ESA notice requirement. Here, however, the Secretary of Commerce apparently has delegated all of his duties under the ESA to NOAA/NMFS. See Department of Commerce, Organization Order 10-15, § 3.01(x) (delegating ESA authority), § 3.05 (authorizing redelegation) (effective Jan. 11, 1988); Delegations of Authority to the Assistant Administrator for Fisheries, NOAA Organizational Handbook, pt. II.C.25 (redelegating ESA authority) (signed Apr. 30, 1993). Absent a defense challenge on this issue, I assume that Strahan sent notice to the appropriate office. I conclude that the ESA 60-day notice requirement has been satisfied by Strahan. I therefore turn to the question whether Strahan has standing under Article III of the Constitution. C. Standing There are three constitutional requirements for standing: First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical^]’ ” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (citations omitted) (alterations in original); see also Libertad v. Welch, 53 F.3d 428, 436 (1st Cir.1995) (RICO). In a prior case brought by Strahan against the United States Coast Guard, I considered the requirements for standing in some detail. See Memorandum and Order, Strahan v. Linnon, slip op. at 18-21, No. 94-11128-DPW (as corrected May 19, 1995). I concluded that Strahan had standing to bring suit under the ESA for harm to Right whales in Massachusetts waters. Defendants contend that Strahan v. Linnon is distinguishable, and that Strahan lacks standing in this case. I therefore review each of the standing requirements in turn. 1. Injury in Fact The first requirement for standing is that the actions of the Defendants invade an actual and legally-cognizable interest of Stra-han’s. Strahan’s deposition testimony in Strahan v. Linnon is useful on this question. Strahan testified that he engages in personal observation of whales, from the coast and, “as many as four to five times” per year, from whale watch boats. {Strahan v. Linnon, Strahan Depos. at 39-40.) The Defendants object to my taking judicial notice of this testimony. (Def.Reply Mem. at 11.) Under Fed.R.Evid. 201(b), judicial notice is appropriate only for a fact that is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Here, I take judicial notice of the fact that Strahan has testified, under oath, that he regularly observes whales in Massachusetts waters. See E.I. du Pont de Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir.1986) (taking judicial notice of related complaint filed by plaintiff in state court); St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.1979) (“Judicial notice is particularly applicable to the court’s own records of prior litigation closely related to the case before it.”) (citations omitted); Cagan v. Intervest Midwest Real Estate Corp., 774 F.Supp. 1089, 1091 n. 1 (N.D.Ill.1991) (taking judicial notice of court file in related case). I therefore do not require that Strahan submit an affidavit to the same effect. I do not take judicial notice of the fact that Strahan regularly observes whales in Massachusetts war ters, as this fact is subject to reasonable dispute. See F.D.I.C. v. O’Flahaven, 857 F.Supp. 154, 157 (D.N.H.1994) (holding court “could not judicially notice the veracity of the allegations in the affidavits; it could only take notice that the affidavits were in fact filed and that the factual averments were in fact made”). Strahan’s reported observations have not, however, been disputed by the Defendants. Regular observation of endangered whales in Massachusetts waters is a cognizable interest for standing purposes. See Defenders of Wildlife, 504 U.S. at 562-63, 112 S.Ct. at 2137-38 (“[o]f course, the desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for the purpose of standing”). Even if I rely solely on the evidence submitted in this case, however, I find that Strahan has a cognizable interest in protecting endangered whales from death and injury in Massachusetts waters. Strahan affirms that he “routinely go[es] ‘whale watching1 in New England_” (PL Second Aff. at 2.) Strahan also states he is a “conservation biologist specializing in the conservation and recovery of endangered species,” (PI. First Aff. at l), and is engaged in-scientific research on the Northern Right whale, id. at 2. This provides sufficient evidence to show that Strahan has suffered, and will continue to suffer, an “injury in fact” from harm to endangered whales in Massachusetts waters. A plaintiff does not have to qualify as an expert witness in order to have a cognizable interest under Article III. 2. Causal Connection The second requirement for standing is that Strahan’s injury be “ ‘fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court.’ ” Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. at 2136-37 (citations omitted) (alterations in original). Indisputably, the actions of third parties not before the court — commercial fishing and whale watch operations — -are the immediate cause of the harm to endangered whales alleged here. Defendants do not place gill-nets and lobster gear in coastal waters, nor do they operate whale watch vessels. Nevertheless, the actions of these third parties are dependent on the actions of the Defendants. Fishing vessels cannot, legally, place gillnets and lobster gear in Massachusetts waters without permission from the Defendants. And whale watch vessels cannot, legally, approach within 500 yards of Right whales in Massachusetts waters without permission from the Defendants. Thus, to the extent that he challenges the operations of licensed commercial fishing and whale watch vessels, Strahan has shown a causal connection between the injury he has suffered (and will continue to suffer) and the actions of the Defendants in issuing such licenses. 3. Redressability The third requirement for standing is that “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Defenders of Wildlife, 504 U.S. at 561, 112 S.Ct. at 2186 (citations omitted). If the Defendants were to limit further, or ban (as Strahan requests), the use of gillnets and lobster gear in Massachusetts waters, it is likely that fewer endangered whales would be harmed through entanglements. Similarly, a prohibition on approaches to within 500 yards of Right whales, with no exception for whale watch vessels, would reduce the likelihood of injury to such whales through collisions with the vessels. Thus, a favorable decision would redress Strahan’s injury. Strahan therefore has standing under Article III. D. Tenth Amendment In their Reply Memorandum, Defendants argue that the Tenth Amendment bars issuance of injunctive relief. Defendants explain: It is undisputed that Strahan’s ultimate goal as an alleged whale preservationist is to obtain a total ban on gill net and lobster pot fishing in Massachusetts coastal waters on the grounds that such fishing is hazardous to whales.... Since federal law does not ban such fishing outright and since neither the Executive nor Legislative Branches of the federal government appear inclined to enact such a ban in the near future, Strahan in reality is requesting that the third branch of the federal government utilize the Commonwealth’s commercial fishing licensing process, to enact and enforce a federal ban on gill net and lobster pot fishing in Massachusetts coastal waters. For instance, if the Court grants the injunctive relief requested by Strahan, no gill net or lobster pot fishing can take place in Massachusetts coastal waters unless the Commonwealth obtains an incidental take permit from the United States Secretary of Commerce.... In short, the Court will have “commandeered” the Commonwealth’s commercial licensing processes to enact and enforce a federal ban on gill net and lobster pot fishing in Massachusetts Coastal waters in violation of the Tenth Amendment to the United States Constitution. (Def.Reply at 2-4 (footnotes and citations omitted).) Defendants rely on New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), in which the Court struck down a provision of the Low-Level Radioactive Waste Policy Act that required states to either accept ownership of hazardous waste or regulate pursuant to Congressional directions. The Court held: “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program.” New York, 505 U.S. at 188, 112 S.Ct. at 2435. The Defendants’ Tenth Amendment claim is misplaced. Put simply, the ESA does not require the Commonwealth to regulate commercial fishing at all. Cf. FERC v. Mississippi 456 U.S. 742, 764, 102 S.Ct. 2126, 2140, 72 L.Ed.2d 532 (1982) (upholding Public Utility Regulatory Policies Act) (“if a State has no utilities commission, or simply stops regulating in the field, it need not even entertain the federal proposals”). Nor is the Commonwealth required to modify its legislative process. Thus, the ESA gives the Commonwealth the “critical alternative” of declining to “administer” the federal program. Cf. New York, 505 U.S. at 176-77, 112 S.Ct. at 2428-29. If Defendants cease exercising 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. Defendants do not contend that enforcement of Section 9 of the ESA against state agencies or officials, per se, violates the Tenth Amendment. As the Supreme Court noted in New York v. United States, “federal courts may in proper circumstances order state officials to comply with federal law.” New York, 505 U.S. at 179, 112 S.Ct. at 2430. The Court explained: [T]he text of the Constitution plainly confers this authority on the federal courts, the ‘judicial Power’ of which ‘shall extend to all Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States ...; [and] to Controversies between two or more States; [and] between a State and Citizens of another State.’ U.S. Const., Art. Ill, § 2. Id. Similarly, Article VI, Clause 2 of the Constitution provides that: “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land....” As the Supreme Court explained in Hodel v. Virginia Surface Mining and Reclamation Ass’n, “[a] wealth of precedent attests to congressional authority to displace or preempt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law.” 452 U.S. 264, 290, 101 S.Ct. 2352, 2367, 69 L.Ed.2d 1 (1981) (citations omitted). “Although such eongres-sional enactments obviously curtail or prohibit the States’ prerogatives to make legislative choices respecting subjects the States may consider important, the Supremacy Clause permits no other result.” Id. (citations omitted). Cf. New York, 505 U.S. at 160, 112 S.Ct. at 2420 (“Petitioners likewise do not dispute that under the Supremacy Clause Congress could, if it wished, pre-empt state radioactive waste regulation.”). Unlike the “take title” provision struck down in New York v. United States, the ESA exercises the federal pre-emption option without seeking to control the state legislative or regulatory process. The ESA simply directs that “[a]ny State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent that it may effectively (1) permit what is prohibited by this chapter or by any regulation which implements this chapter_” 16 U.S.C. § 1535(f). As was true of the Surface Mining Control and Reclamation Act in Hodel, “there can be no suggestion that the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Hodel, 452 U.S. at 288, 101 S.Ct. at 2366. For these reasons, I reject Defendants’ argument that the Tenth Amendment bars issuance of injunctive relief in this case. E. Eleventh Amendment Emboldened by the Supreme Court’s recent ruling in Seminole Tribe of Florida v. Florida, — U.S. -, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), Defendants have mounted a reinvigorated argument, only lightly developed in the initial briefing on these motions, that the Eleventh Amendment bars any and all of Strahan’s claims against the Commonwealth under the ESA. The Court in Seminole Tribe held that Congress did not have the power under the Indian Commerce Clause to abrogate state sovereign immunity from suit in federal court. Id. at -, 116 S.Ct. at 1181-32. By expressly overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), the Court in Seminole Tribe also held that the Interstate Commerce Clause does not give Congress power to abrogate state sovereign immunity. See id. at -, 116 S.Ct. at 1128. That holding may arguably be extended to proscribe Congress from abrogating state sovereign immunity under the ESA, which is grounded on the Commerce Clause powers of the Congress. I do not, however, find it necessary to address this question, because it is not dispositive in the present ease. I find that the Plaintiff here may maintain the ease pursuant to a well-established exception to the Eleventh Amendment when the relief sought is prospective. The exception is that created by Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which held that the Eleventh Amendment did not bar an action in the federal court to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment. See Ex Parte Young, 209 U.S. at 159-60, 28 S.Ct. at 453-54 (“The state has no power to impart to [the state employee] immunity from responsibility to the supreme authority of the United States.”). The holding of Ex Parte Young has been limited to actions seeking only declaratory and/or in-junctive relief against state officials to halt continuing violations of federal law. See Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974) (“a federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief,, and may not include a retroactive award which requires the payment of funds from the state treasury.”) (citations omitted); Green v. Mansour, 474 U.S. 64, 73, 106 S.Ct. 423, 428, 88 L.Ed.2d 371 (1985) (holding declaratory judgment relief unavailable where “[t]here is no claimed continuing violation of federal law, and' therefore no occasion to issue an injunction.”); Libby v. Marshall, 833 F.2d 402, 406 (1st Cir.1987) (“because of Ex Parte Young, a state has to ‘stand trial’ whenever ... a suit against an official in his official capacity to remedy a violation of federal law — is brought against it.”); Ramirez, 715 F.2d at 697 (“The distinction between permissible and impermissible relief in such cases turns on which way Lot’s wife is facing: prospective redress is allowable, retrospective redress is not.”). In the present action, Strahan seeks declaratory and injunctive relief rather than money damages payable from the public fisc. And even if the relief sought by Strahan would have an incidental effect on State revenues, “the fiscal consequences ... [will be] the necessary result of compliance with decrees which by their terms were prospective in nature.” Edelman, 415 U.S. at 667-68, 94 S.Ct. at 1358. Thus, this action falls within the traditional scope of the exception to an Eleventh Amendment bar provided by Ex Parte Young. To be sure, Seminole Tribe further refined the application of Ex Parte Young in eases against state officials. In Seminole Tribe, the Court held that Ex Parte Young was inapplicable to a suit under § 2710(d)(3) of the Indian Gaming Regulatory Act (“IGRA”) against the Governor of Florida in his official capacity because the statute “prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right.” Seminole Tribe, — U.S. at -, 116 S.Ct. at 1132. The Court stated that the remedies provided for in the statute were meant not only to define but also “significantly to limit” the potential bases for relief under the statute. Id. at -, 116 S.Ct. at 1132-33. The Defendants contend that the holding in Seminole Tribe applies with the same force to the ESA and to the MMPA as it did to IGRA Defendants argue that: [t]he statutory remedial scheme for enforcement of the ESA and MMPA directs that ... policy questions be resolved by NMFS in rulemaking, and not by the court through adjudication. Under the current scheme, Strahan may petition NMFS to issue regulations banning gillnet and lobster pot fishing in Massachusetts coastal waters or requiring the Commonwealth to apply for incidental and small take permits under the ESA and MMPA prior to licensing such fishing, (citation omitted). Defendants’ Memorandum in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction at 21. The Defendants overestimate the breadth of Seminole Tribe’s impact on Ex Parte Young. The Seminole Tribe gloss on Ex Parte Young does not affect the statutes in the present action whose remedial schemes are not similar to the one provided for in IGRA. The