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      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
                 United States Court of Appeals
                     For the First Circuit





No. 97-1787

                       RICHARD MAX STRAHAN,

                      Plaintiff, Appellant,

                                v.

                     JOHN L. LINNON, ET AL.,

                      Defendants, Appellees.



           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]



                              Before

                    Selya, Boudin and Stahl,
                        Circuit Judges.
                                
                                


     Richard Max Strahan on brief pro se.
     Lois J. Schiffer, Assistant Attorney General, James C.
Kilbourne, David C. Shilton, Samuel D. Rauch and Mark R. Haag,
Attorneys, Department of Justice.





July 16, 1998



                                
                                


            Per Curiam.  Richard Max Strahan appeals from the
    grant of summary judgment in favor of federal defendants on his
    claims alleging violations of the Endangered Species Act
    ("ESA"), the Marine Mammal Protection Act ("MMPA"), and the
    National Environmental Policy Act ("NEPA").  We affirm.
                            I.  Background
              On June 7, 1994, Strahan filed a pro se complaint
    against the Coast Guard alleging violations of the ESA, the
  MMPA,  NEPA, and the Whaling Convention Act ("WCA").    Strahan
    moved for a preliminary injunction, and the Coast Guard cross-
    moved for summary judgment in its favor.  By decision dated May
    2, 1995, the district court granted the Coast Guard's motion
    for summary judgment, in part.  However, the district court
    concluded that, given the Coast Guard's "dilatoriness and
    neglect in initiating mandated procedures," Strahan was
    entitled to a preliminary injunction directing the Coast Guard
    to fulfill certain procedural requirements of the ESA, the
    MMPA, and NEPA.
       During this same period, the Coast Guard initiated
    formal consultation with the National Marine Fisheries Service
    ("NMFS") regarding its vessel operations along the Atlantic
    Coast.  On August 1, 1995, the Coast Guard submitted a final
    (ESA) biological assessment to NMFS.  On September 15, 1995,
    NMFS issued a biological opinion concluding that Coast Guard
    Atlantic activities did not  jeopardize the continued existence
    of protected marine species.  On September 22, 1995, the Coast
    Guard published a (NEPA) environmental assessment and a
    proposed finding of no significant impact.  During the months
    that followed, several commentators urged the Coast Guard to
    prepare an environmental impact statement and to consider
    additional protective measures.  In addition, on October 9,
    1995, the Coast Guard struck a (suspected) Humpback whale.  On
    February 22, 1996, the Coast Guard re-initiated consultation
    with NMFS.
       On June 21, 1996, Strahan, now represented by
    counsel, filed a twenty-three count amended complaint.  The
    amended complaint added defendants Secretary of Commerce, the
    National Oceanic and Atmospheric Administration, and NMFS.
       On July 22, 1996, NMFS issued a second biological
    opinion.  Based on new information that indicated a possible
    decline in the population of Northern Right whales, and taking
    into account cumulative effects, NMFS concluded that Coast
    Guard operations were likely to jeopardize the continued
    existence of Northern Right whales.  Accordingly, it
    recommended reasonable and prudent alternatives, which would
    "significantly reduce[] the Coast Guard's potential to cause
    injury or mortality to a right whale, and therefore, avoid the
    likelihood of jeopardizing the continued existence of right
    whales."  NMFS did not alter its earlier conclusion that Coast
    Guard activities were not likely to jeopardize other protected
    species.
       On October 31, 1996, the Coast Guard published a
    final environmental impact statement which proposed the
    Atlantic Protected Living Marine Resources ("APLMR")
    Initiative.  The APLMR Initiative essentially adopted and
    expanded on measures recommended in the NMFS's 1996 biological
    opinion.  On December 9, 1996, the Coast Guard issued a Record
    of Decision announcing its intent to implement the APLMR 
    Initiative.  
       On March 7, 1997, defendants moved for summary
    judgment.  Strahan cross-moved for partial summary judgment. 
    By order dated May 20, 1997, the district court granted full
    summary judgment in favor of defendants.  This pro se appeal
    followed.  Of the twenty-three counts in the amended complaint,
    Strahan makes an argument with respect to--or at least
    mentions--only fourteen of these counts on appeal (namely,
    Counts I, II, III, IV, VI, VII, IX, X, XII, XIII, XIV, XX, XXI,
    XXII).
    
                     II.  The Standard of Review    
       A constant theme throughout Strahan's brief, but most
    strenuously argued in his introductory section, is that the
    district court erred in applying a deferential standard of
    review.  He contends that as "past violators" of the provisions
    of the ESA and the MMPA, neither the Coast Guard nor NMFS is
    entitled to any deference.  He also suggests that the district
    court extended deference to the federal agencies involved to
    the "point of gullibility."  We disagree. 
       Contrary to Strahan's suggestion, the appropriate
    scope of review of federal agency action under the ESA, the
    MMPA, and NEPA is the standard set forth under the
    Administrative Procedure Act, 5 U.S.C. � 706(2)(A).   See,
    e.g., Dubois v. United States Dep't of Agric., 102 F.3d 1273,
    1284 (1st Cir. 1996) (NEPA), cert. denied, 117 S. Ct. 2510
    (1997);  Sierra Club v. Glickman, 67 F.3d 90, 95-96 (5th Cir.
    1995) (ESA).  Under this standard, an agency decision may not
    be set aside unless found to be "arbitrary, capricious, an
    abuse of discretion, or otherwise not in accordance with law." 
    5 U.S.C. � 706(2)(A).  When reviewing agency action, we apply
    the same legal standards that pertain in the district court. 
    See Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104,
    109 (1st Cir. 1997).
    
               III.  Jeopardy and the Duty to Conserve
       Section 7 of the ESA, titled "Interagency
    Cooperation," places two responsibilities on federal agencies. 
    Section 7(a)(1) provides that all agencies shall, "in
    consultation with and with the assistance of the Secretary,"
    utilize their authorities in furtherance of the purposes of the
    ESA by carrying out programs for the conservation of endangered
  species and threatened species.    16 U.S.C. � 1536(a)(1).  
    Section 7(a)(2) of  the ESA requires that all federal agencies
    shall, in "consultation with and with the assistance of the
    Secretary," insure that any actions they authorize, fund or
    carry out "[are] not likely to jeopardize the continued
    existence" of any threatened or endangered species.  16 U.S.C.
  � 1536(a)(2).    Pursuant to 50 C.F.R. Part 402, the
    requirements of � 7 apply to "actions in which there is
    discretionary Federal involvement or control."  50 C.F.R. �
    402.03.  
       Five counts of the amended complaint relate to � 7 of
    the ESA.  Construed broadly, Counts I and XII challenge the
    adequacy of the Coast Guard's biological assessment and NMFS's
    1995 and 1996 biological opinions, prepared pursuant to �
    7(a)(2).  Count II challenges the Coast Guard's failure to
    initiate consultation under � 7(a)(2) regarding its duties of
    issuing Certificates of Documentation and Inspection to
    vessels.  Count III alleges the failure to adopt or implement
    adequate conservation measures as required by � 7(a)(1).  Count
    XX is a facial challenge to the validity of 50 C.F.R. � 403.02,
    which limits the applicability of � 7 to discretionary actions. 
     Defendants argue that the APLMR Initiative meets the
    requirements of � 7(a)(1) of the ESA.  The district court
    concluded that Strahan had failed to demonstrate, in any
    meaningful sense, specific measures that are necessary to
    prevent the loss of endangered species of whales that are
    missing from the APLMR.  The district court further concluded
    that, in any event, the ESA does not mandate particular actions
    to be taken by federal agencies to implement � 7(a)(1).  On
    appeal, Strahan makes no sustained argument that either of
    these conclusions is in error.  Indeed, he makes no effort to
    explain in any detail why he thinks that the APLMR Initiative
    is inadequate.  Rather, he makes conclusory suggestions,
    scattered throughout his brief, to the effect that nothing has
    changed and that, with the dismissal of his claims, it is back
    to "business as usual."  Under the circumstances, we see no
    reason to set the district court's conclusions aside.
       Strahan's arguments directed at the process and end
    result of the � 7(a)(2) consultation--and, in particular, the
    Coast Guard's biological assessment and NMFS's biological
    opinions--are similarly deficient.  Without attempting to
    address each of his arguments, we note that, although he
    contends that the reasonable and prudent alternatives in the
    1996 biological opinion are inadequate to "eliminate" jeopardy,
    he does not identify any specific measure that is lacking. 
    Moreover, a reviewing court cannot substitute its own
    scientific judgment in place of the agency's judgment.  In the
    absence of any meaningful challenge to the decision making
    process, or some reason to think that there has been a clear
    error of judgment, the court must defer to the agency's
  decision.    Cf. Marsh v. Oregon Natural Resources Council, 490
    U.S. 360, 378 (1989) ("[A]n agency must have discretion to rely
    on the reasonable opinions of its own qualified experts . . .
    ");  Citizens Awareness Network, Inc. v. United States Nuclear
    Regulatory Comm'n, 59 F.3d 284, 290 (1st Cir. 1995) (observing
    that deference is especially marked in technical or scientific
    matters within the agency area of expertise).
       Finally, pursuant to 50 C.F.R. � 402.03, the
    requirements of � 7 do not apply to the Coast Guard's
    documentation and inspection duties.   As the district court
    explained, the Coast Guard is required to issue Certificates of
    Documentation and Inspection if certain statutory criteria are
    met, none of which reference environmental concerns.  If the
    statutory criteria are met, the Coast Guard has no discretion
    to deny a certificate (or  to impose additional requirements
    directed at the protection of endangered species).  Although
    Strahan renews his facial challenge to the validity of �
    402.03, he makes no argument that the district court erred in
    ruling that this challenge is time-barred.  Under the
    circumstances, his challenge must fail.  Cf. Murrell v.
    Shalala, 43 F.3d 1388, 1389-90 (10th Cir. 1994) (stating that
    where plaintiff failed to address alternative independent
    finding that was, by itself, a sufficient basis for the denial
    of benefits, his success on appeal was foreclosed). 
                   IV.  The Anti-taking Provisions 
       Section 9 of the ESA prohibits the taking of
    endangered species.  See 16 U.S.C. � 1538(a)(1).  "Taking" is
    broadly defined and includes killing, wounding, pursuing,
    harassing or harming.  16 U.S.C. � 1532(19).  Section 102 of 
    the MMPA prohibits the taking of marine mammals.  16 U.S.C. �
    1372(a).  Under the MMPA, "taking" includes harassing, hunting,
    capturing, or killing.  See 16 U.S.C. � 1362(13).  Counts IX
    and X of the amended complaint allege, respectively, that the
    Coast Guard is violating these anti-taking provisions of the
    ESA and the MMPA.  The complaint alleges that the Coast Guard
    is liable for takings by its own vessels, as well as for
    takings by non-Coast Guard vessels to which it has issued a
    Certificate of Documentation.
       It is undisputed that, prior to the adoption of the
    APLMR Initiative, Coast Guard vessels struck and killed two
    Northern Right whales and struck a (suspected) Humpback whale. 
    It is also undisputed that these incidents constitute takings
    in violation of the ESA and MMPA.  Although Strahan sought a
    declaratory judgment to this effect, the district court found
    that such relief would be supererogatory in light of the Coast
    Guard's admissions.  Strahan does not challenge this
    conclusion.  Rather, he contends that injunctive relief is
    necessary to prevent future takings, and that the district
    court erred in concluding that the protective measures
    suggested by NMFS in its 1996 biological opinion and adopted by
    the Coast Guard in its APLMR Initiative warrant the grant of
    summary judgment in the Coast Guard's favor.
       We agree with the district court that the measures
    adopted by the Coast Guard in its APLMR Initiative cover most
    of the substance of specific measures proposed by Strahan in
  his amended complaint.    To the extent that the proposed
    measures differ (and the district court highlighted the fact
    that Strahan's proposed speed guidance differs somewhat from
    that adopted by the Coast Guard), the district court
    appropriately deferred to agency expertise.  NMFS concluded
    that the reasonable and prudent alternatives, if implemented,
    would reduce the risk of Coast Guard striking whales to the
  maximum extent possible.    NMFS explicitly approved the Coast
    Guard's speed guidance, and that decision was not "arbitrary
    and capricious."  Under the circumstances, we think that the
    district court correctly found that Strahan failed to support
    a case for further injunctive relief.
       Finally, we reject Strahan's argument that the Coast
    Guard is liable for takings by non-Coast Guard vessels that it
    permits to operate.  The Coast Guard's issuance of Certificates
    of Documentation and Inspection is analogous to the licensure
    of automobiles and drivers.  The vessel owner or operator is an
    independent actor who is, himself, responsible for complying
    with environmental and other laws.  Accordingly, by issuing the
    necessary permits to operate, the Coast Guard does not subject
    itself to liability for crimes, including takings, that actor
    may commit.  Cf. Strahan v. Coxe, 127 F.3d 155, 163-64 (1st
    Cir. 1997) (contrasting the state's licensure of commercial
    fishing operations to use gillnets and lobster pots in a
    specific manner with its licensure of automobiles and drivers). 
                        V.  Recovery Plans
       Section 4(f) of the ESA provides that "[t]he
    Secretary [of Commerce] shall develop and implement 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).  Section 115(b) of the MMPA requires the Secretary
    of Commerce to prepare conservation plans "as soon as possible"
    for depleted species, unless he determines that such a plan
    will not promote the conservation of the species.  16 U.S.C. �
    1383b(b)(1)(C).  Conservation plans under the MMPA are required
  to be modeled on recovery plans prepared under the ESA.    See16 U.S.C. � 1383b(b)(2).  NMFS has completed recovery plans for
    the Northern Right whale and the Humpback whale, but not the
    other endangered species of whales at issue here (namely, the
  Blue, Sei, and Fin whales).  
       Two counts of the amended complaint relate to the
    duty of NMFS to prepare recovery and conservation plans.  Count
    XIII challenges the adequacy of NMFS's Northern Right Whale
    Recovery Plan.  Count XIV challenges NMFS's failure "to prepare
    conservation plans for the Federally Protected Whales."
       Strahan does not renew many of the specific
    challenges he urged below to the methodology and content of the
    Northern Right Whale Recovery Plan.  Rather, he makes vague
    criticisms to the effect that the district court erred in
  finding that the plan is "unreviewable."    He suggests that the
    plan is "arbitrary and capricious" because it sets an [interim]
    goal--increasing the population of Northern Right whales to
    6,000--that cannot "be reached . . . within the next two
    centuries."  He also contends that the district court "erred
    when it found that NMFS had met the requirement for site-
    specific management plans by the mere recognition by it of
    whales in the Atlantic and Pacific oceans."  
       We reject these challenges to the Northern Right
    Whale Recovery plan essentially for the reasons stated by the
    district court.  Nothing in � 4(f) mandates that a recovery
    plan set short-term, interim goals, and the goal of 6,000 is
    rationally connected with the goal of down-grading the Northern
    Right whale from an endangered to a threatened species. 
    Moreover, the Northern Right Whale Recovery Plan does not
    simply "recognize" that there are Northern Right Whales in the
    Atlantic and Pacific oceans.  Rather, it devotes separate
    chapters to the two populations.  In addition, the district
    court correctly found that the plan addresses different
    habitats of Northern Right whales at different times of the
    year and contains measures specifically directed at each
    habitat.
       Strahan also argues that the district court erred
    "when it allowed NMFS to take as long as it want[s] to develop
    recovery plans for other listed species of whales."  However,
    Strahan makes no developed challenge to the lower court's
  reasoning.  Under the circumstance, his challenge must fail.   
                       VI.  Law Enforcement
       Four counts of the amended complaint relate to shared
    duties of the Coast Guard and NMFS to enforce the requirements
    of the ESA and the MMPA.  Counts VI and XII allege,
    respectively, that the Coast Guard and NMFS have failed in
    their duties to enforce the ESA.  Counts VII and XXI allege,
    respectively, that the Coast Guard and NMFS have failed in
    their duties to enforce the MMPA.  The district court granted
    summary judgment on these claims after concluding that Strahan
    had failed to introduce sufficient evidence to overcome the
    presumption of unreviewability of agency decisions not to
    enforce.  See generally Heckler v. Chaney, 470 U.S. 821 (1985). 
    The court also found, among other things, that "[t]he Coast
    Guard recently has increased its efforts to enforce the ESA"
    and that "the record demonstrates that NMFS does enforce the
    ESA and the MMPA with some degree of vigor."
       On appeal, Strahan makes no argument directed at the
    latter conclusions.  Rather, he challenges the "presumption of
    unreviewability."  He contends that review of enforcement by
    the Coast Guard and NMFS is available because (1) an
    enforcement policy is a "mandated" feature of a conservation
    "plan" [developed under � 7(a)(1) of the ESA] or a recovery
    plan [developed under � 4(f) of the ESA]; and (2) that these
    plans are themselves subject to review.  This argument is
    waived for failure to present it in the district court.  We 
    add that, without expressing any opinions as to whether an
    enforcement policy is a required feature of such plans, both
    the Coast Guard's APLMR Initiative and NMFS's Northern Right
    Whale Recovery Plan express a commitment to vigorous
    enforcement of environmental laws.
                              VII. NEPA
       In Count IV of the amended complaint, Strahan alleges
    that the Coast Guard has failed to comply with its duties under
    � 102(2)(c) of NEPA, 42 U.S.C. � 4332(2)(C), to prepare an
    environmental impact statement regarding Coast Guard vessel
    operations and Coast Guard documentation and inspection
    activities.   The district court concluded in its May 2, 1995
    order that the Coast Guard's documentation and inspection of
    individual vessels are not subject to NEPA.  The Coast Guard
    subsequently completed a final environmental impact statement
    for its own vessel operations.
       Strahan challenges the district court's conclusion
    that the Coast Guard's documentation and inspection of
    individual vessels is not subject to NEPA.  We agree with the
    district court.  NEPA is inapplicable because, in issuing
    Certificates of Documentation and Inspection, the Coast Guard
    has no discretion to consider environmental factors.  See Milo
    Community Hospital v. Weinberger, 525 F.2d 144, 147-148 (1st
    Cir. 1975) (holding that the Secretary of HEW was not required
    to file an EIS when decertifying a hospital for non-compliance
    with safety code because he had a statutory duty to close the
    hospital and no discretion to take environmental factors into
    consideration); see also Sierra Club v. Babbit, 65 F.3d 1502,
    1512 (9th Cir. 1995) (collecting cases demonstrating that
    nondiscretionary agency action is excused from the operation 
    of NEPA).
                          VIII.  Conclusion
       We have carefully considered the other arguments
    raised by Strahan in his brief and reject them as
    insufficiently developed or otherwise lacking in merit. 
    Accordingly, the grant of judgment in favor of defendants is
    affirmed.
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