The Humane Society of US. v. Glickman, 99-5309

• Decision Date: 18 July 2000
• Docket Number: No. 99-5309,99-5309
• Parties: (D.C. Cir. 2000) The Humane Society of the United States, et al.,Appellees v. Dan Glickman, Secretary, U.S. Department of Agriculture, et al.,Appellants
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 882

217 F.3d 882 (D.C. Cir. 2000)

The Humane Society of the United States, et al.,Appellees v. Dan Glickman, Secretary, U.S. Department of Agriculture, et al.,Appellants

No. 99-5309

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2000

Decided July 18, 2000

Appeal from the United States District Court for the District of Columbia(98cv01510)

James C. Kilbourne, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Lois J. Schiffer, Assistant Attorney General, and Andrew Mergen, Attorney.

Jonathan R. Lovvorn argued the cause for appellees. With him on the brief was Katherine A. Meyer.

Before: Edwards, Chief Judge, Randolph and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

The "International Convention for the Protection of Migratory Birds," 39 Stat. 1702 (1916), between the United States and Great Britain (acting for Canada) sought to preserve, in the words of Justice Holmes, "a national interest of very nearly the first magnitude," Missouri v. Holland, 252 U.S. 416, 435 (1920). The Treaty "recited that many species of birds in their annual migrations traversed certain parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation, but were in danger of extermination through lack of adequate protection." Id. at 431. Legislation implementing the Treaty--the Migratory Bird Treaty Act of 1918--"prohibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty except as permitted by regulations" now administered by the Department of the Interior.¹ 252 U.S. at 431. In this appeal from the district court's order enjoining the Department of Agriculture from violating the statute, the question is whether the Migratory Bird Treaty Act prohibits federal agencies from killing or taking migratory birds without a permit from the Interior Department.

I

At the center of the controversy is the Canada goose-Branta canadensis. With its black-stockinged neck and head and distinctive white cheek patch, its loud resonant honking calls, and its V-shaped flight formations, the Canada goose is a familiar sight throughout most of North America. See Frank C. Bellrose, Ducks, Geese and Swans of North America 142 (3d ed. 1980). The Mid-Atlantic population of Canada geese, one of eleven recognized races, winters in the coastal areas of Virginia, Delaware, and New Jersey, and returns in the spring to the tundra zone of the Ungava Peninsula in Quebec, its traditional summer breeding grounds. See id. at 144-45. In recent years, however, large flocks of Canada geese have stopped migrating, preferring to breed, nest and rear their young in the coastal states of the middle Atlantic region. The Commonwealth of Virginia has become a host to many of these full-time residents. In 1991, an estimated 66,169 Canada geese lived year round in Virginia. By 1998 Virginia's resident goose population had quadrupled to 254,000. See Wildlife Services, Animal and Plant Health Inspection Service, U.S. Dep't of Agriculture, Environmental Assessment for the Management of conflicts associated with non-migratory (resident) Canada geese, migratory Canada geese, and urban/suburban ducks in the Commonwealth of Virginia 2.1, at 6 (Mar. 30, 1999) ("Environmental Assessment"). In the same year, only 70,000 migratory Canada geese wintered over in Virginia, see id. tbl.5, at 18, a number not much larger than the migratory population in the 1970s, see Bellrose, supra, at 148.

Residential owners, farmers, government officials and many others are deeply concerned about the exploding population of Canada geese. Browsing by Virginia's resident geese has reduced state-wide yields of cereal grains, peanuts, soybeans and corn. Goose droppings have spoiled water quality around beaches and wetlands, and interfered with the enjoyment of parks and ball fields. The geese have damaged gardens, lawns and golf courses. Their fecal deposits threaten to contaminate drinking water supplies. See Environmental Assessment 2.1.1, at 6; 2.1.2.1, at 7; 2.1.3.1, at 11; 2.1.4, at 12. And they pose a hazard to aircraft. Resident geese are found at most of Virginia's airports and military bases. In 1995, a passenger jet hit ten Canada geese at Dulles International Airport, causing $1.7 million of wing and engine damage. See id. 2.1.2.5, at 10. Collisions have also occurred at other Virginia airports. And "Langley Air Force Base and Norfolk Naval Air Station have altered, delayed, aborted, and ceased flight operations because of Canada geese on their field." Id.²

In response to these problems and others, the Department of Agriculture, through its Animal Health and Inspection Service's Wildlife Services division, instituted an "Integrated Goose Management Program" in conjunction with Virginia state agencies. The plan called for various measures such as harassment, biological control, habitat alteration, repellents, nest and egg destruction, and capture and killing. The killings were to take place during the "summer molt"-between mid-June and late-July--when the resident geese cannot fly (the migratory geese are in Canada at this time of year). An Environmental Assessment, issued on January 29, 1997, reflected the Interior Department's longstanding position that the Migratory Bird Treaty Act restricted not only private parties and states, but also federal agencies. Hence a "federal Migratory Bird Depredation Permit ... would be required and obtained for the proposed action." Animal Damage Control, Animal and Plant Health Inspection Service, U.S. Dep't of Agriculture, Environmental Assessment for the Management of conflicts associated with nonmigratory (resident) Canada geese and urban/suburban mallard ducks in the State of Virginia 22 (Jan. 29, 1997).Interior's Fish and Wildlife Service (FWS) is authorized to issue such depredation permits for migratory birds that "bec[o]me seriously injurious to the agricultural or other interests in any particular community." International Convention for the Protection of Migratory Birds, art. VII, 39 Stat. 1702, 1704 (1916) ("International Convention"), referenced in 16 U.S.C. 704; see also 50 C.F.R. pt. 21.

In 1997, the Director of FWS issued a memorandum to regional directors stating that federal agencies no longer needed to obtain a permit before taking or killing migratory birds. The Humane Society of the United States, Citizens for the Preservation of Wildlife, the Animal Protection Institute, and three individuals thereupon filed suit against the Secretaries of Agriculture and Interior and other officials in those departments seeking to enjoin implementation of the Goose Management Plan. The district court ruled that § 703 of the Migratory Bird Treaty Act restricted federal agencies. The court therefore enjoined the defendants "from conducting the Canada Goose Plan until such time as they shall obtain valid permits to do so pursuant to the" Act. Humane Soc'y v. Glickman, No. 98CV-1510, memorandum opinion at 21-22 (D.D.C. July 6, 1999).

II

Although Virginia's Canada geese are year-long residents, they are members of a species that migrates and therefore fall within the category of "migratory birds" protected by the 1916 Treaty and the Act. See 50 C.F.R. 10.13. Protected from whom? The district court thought 703 of the Act gave the answer--from everyone in the United States, including federal agencies. The provision reads:

Unless and except as permitted by regulations made as herein after provided in this sub chapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, oris composed in whole or in part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August16, 1916 (39 Stat. 1702)....

16 U.S.C. 703. As legislation goes, 703 contains broad and unqualified language--"at any time," "by any means," "in any manner," "any migratory bird," "any part, nest, or egg of any such bird," "any product ... comprised in whole or part, of any such bird." The one exception to the prohibition is in the opening clause--"Unless and except as permitted by regulations made as hereinafter provided in this subchapter...." For migratory game birds, of which the Canada goose is one, the exception gives the Interior Department authority to regulate hunting seasons and bag limits. Article II of the Treaty itself required a closed season--no hunting of these birds--between March 10 and September 1, the typical period when the birds breed, molt and raise their young. In addition to issuing hunting regulations, see, e.g., 50 C.F.R. pt. 20; id. 20.105, the Secretary of the Interior may issue permits for killing Canada geese and other migratory birds if this is shown to be "compatible with the terms of the [Migratory Bird] conventions."³ 16 U.S.C. 704. As we have said, Article VII of the Treaty contemplated that permits allowing the killing of migratory birds would be available in "extraordinary conditions" when the birds have "become seriously injurious to the agricultural or other interests in any particular community," International Convention, art. VII, 39 Stat. 1704.

As 703 is written, what matters is whether someone has killed or is attempting to...