Fund for Animals, Inc. v. Hogan, 03-5077.

• Decision Date: 04 November 2005
• Docket Number: No. 04-5077.,No. 03-5077.,03-5077.,04-5077.
• Citation: 428 F.3d 1059
• Parties: FUND FOR ANIMALS, INC., et al., Appellants v. Matthew J. HOGAN, Acting Director, United States Fish and Wildlife Service, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1059

428 F.3d 1059

FUND FOR ANIMALS, INC., et al., Appellants v. Matthew J. HOGAN, Acting Director, United States Fish and Wildlife Service, et al., Appellees.

No. 03-5077.

No. 04-5077.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 2005.

Decided November 4, 2005.

Appeals from the United States District Court for the District of Columbia (No. 01cv02078).

Jonathan R. Lovvorn argued the cause for appellants. With him on the briefs was Eric R. Glitzenstein.

R. Justin Smith, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Andrew C. Mergen and John A. Bryson, Attorneys. David C. Shilton and Greer S. Goldman, Attorneys, entered appearances.

Before: GINSBURG, Chief Judge, and TATEL and BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge.

The Fund for Animals petitioned the U.S. Fish and Wildlife Service to list as endangered or threatened the trumpeter swans inhabiting Wyoming, Montana, and Idaho. The Service denied the petition and thereafter authorized a limited "take" of trumpeter swans incidental to the 2001 and 2002 hunting seasons for tundra swans in Utah and Nevada. The Fund sued the Service, claiming these decisions variously violated the Endangered Species Act (ESA), the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and the Migratory Bird Treaty Act (MBTA). The district court rejected the Fund's claims, see Fund for Animals v. Williams, 311 F.Supp.2d 1 (D.D.C.2004) (ESA claim); Fund for Animals v. Williams, 246 F.Supp.2d 27 (D.D.C.2003) (NEPA and MBTA claims); Fund for Animals v. Williams, 245 F.Supp.2d 49 (D.D.C.2003) (APA claim), and the Fund now appeals.

The Service contends all the Fund's claims are now moot and we agree. We therefore affirm the district court's order dismissing as moot the Fund's claim under the ESA, and we dismiss as moot the Fund's claims under the APA, the NEPA, and the MBTA. Finally, we vacate the orders under review pursuant to United States v. Munsingwear, Inc., 340 U.S. 36, 40, 71 S.Ct. 104, 95 L.Ed. 36 (1950).

I. Background

The trumpeter swan is the world's largest waterfowl. In the 19th century hunters nearly eliminated the trumpeter swan population in the United States but, pursuant to a treaty between the United States and Canada, the swans have been protected for nearly 80 years. See Convention for the Protection of Migratory Birds, U.S.-Gr. Brit. (acting for Canada), Aug. 16, 1916, 39 stat. 1702, 1702 (1916) (bilateral treaty generally prohibiting the hunting of "Anatidae," the family to which the trumpeter swan belongs); 16 U.S.C. §§ 703-712 (implementing the treaty). For the purpose of managing trumpeter swans in the United States, the Fish and Wildlife Service divides them into "Pacific Coast," "Rocky Mountain," and "Interior" populations. In 2000 there were an estimated 3,975 trumpeter swans in the Rocky Mountain population, of which fewer than 400 inhabited the Greater Yellowstone "tri-state area" of Wyoming, Montana, and Idaho.

Until recently, the tri-state trumpeter swans were largely nonmigratory. In 1992, however, after one particularly harsh winter caused a significant number of deaths, the Service began facilitating their seasonal migration to warmer climes via the Pacific Flyway. Unfortunately, however, trumpeter swans migrating through the Pacific Flyway are easily mistaken for tundra swans, a physically similar but vastly more populous species. Because the hunting of tundra swans is legal in several of the States in the Pacific Flyway, the Service anticipated that each year hunters of tundra swans would accidentally kill a certain number of trumpeter swans.

In 1995 the Service launched a five-year experiment with the aim of fostering migration by trumpeter swans while simultaneously reducing the risk posed by hunters: Hunting trumpeter swans would remain illegal, but the Service would accept a certain "take," or number of accidental deaths, among trumpeter swans in Utah and Nevada; if and when the specified number of trumpeter swans was killed, the Service and the State would terminate the hunting of tundra swans for that season.

A. The Fund's Listing Petition

Any "interested person" may petition the Secretary of the Interior to list a "species" as endangered or threatened. 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14; see also 16 U.S.C. § 1532(16) ("species" may be a "distinct population segment"). "To the maximum extent practicable, within 90 days after receiving [a] petition," the Service must "make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted." 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. § 424.14(b)(1). If the Service concludes in its 90-day finding that the action requested in the petition may be warranted, then it must "promptly commence a review of the status of the species concerned." 16 U.S.C. § 1533(b)(3)(A). Separately the ESA authorizes the Secretary immediately to list a species facing "any emergency posing a significant risk to the well-being of [that] species." 16 U.S.C. § 1533(b)(7).

In August 2000 the Fund petitioned the Service to list, on an emergency and alternatively on a non-emergency basis, the tristate portion of the Rocky Mountain population as endangered or threatened. See The Biodiversity Legal Foundation & The Fund for Animals, "Petition for a Rule to List the Greater Yellowstone (Tri-state) Breeding Population of the Trumpeter Swan (Cygnus buccinator) as Threatened or Endangered" (Aug. 22, 2000). In September the Service replied in a two-page letter stating, "The birds included in [the Fund's] petition are not recognized by the Service as a population," and adding that the Service did not "have listing funds currently available to initiate work on a 90-day finding."

The Fund then sued the Service in district court, claiming the letter did not adequately explain why the Service was denying the Fund's request for an emergency listing of the tristate population and seeking an order requiring the Service to fulfill the 90-day finding requirement of the ESA. Finding the letter provided no "explanation as to why the Service does not recognize the Tri-State swans as a population separate from the [Rocky Mountain] swans," 246 F.Supp.2d at 36, the district court entered a summary judgment for the Fund, remanding the matter to the Service for elucidation.

In January 2003 the Service finally published the requisite 90-day finding in which it detailed why the tri-state trumpeter swans were not a distinct population segment apart from the Rocky Mountain population. First, the Service determined that the tri-state swans were not "markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors." 68 Fed.Reg. 4221, 4223-25 (Jan. 28, 2003). Second, it found they were not "delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status or regulatory mechanisms exist that are significant with regard to conservation of the taxon." Id. at 4223, 4225-26. The tri-state trumpeter swans were therefore part of the Rocky Mountain population, which had grown on average by 4.8% per year from 1968 to 2000 and were neither endangered nor threatened. See id. at 4228. The district court, noting that the belated finding had provided "a coherent statement of reasons for the Service's conclusion that the Tri-State Trumpeter swans are not a distinct population segment," 311 F.Supp.2d at 8, granted the Service's motion to amend the judgment and to dismiss as moot the Fund's claim under the ESA.

B. The 2001 Environmental Assessment

Deeming its experimental migration program of 1995 to 2000 a success, the Service decided to incorporate the program into the regulations it issues each year to govern the hunting of migratory birds. In 2001, therefore, the Service did an environmental assessment (EA), see 40 C.F.R. §§ 1501.4(b)-(c), 1508.9, "to establish regulatory options and management direction for Trumpeter and Tundra swans based on past experience with the authorization of a limited take of Trumpeter swans in the Pacific Flyway." U.S. Fish and Wildlife Service, Proposal to Establish Operational/Experimental General Swan Hunting Seasons in the Pacific Flyway 3 (June 15, 2001). Although the hunting of trumpeter swans remained illegal, the 2001 EA allowed for an accidental take of up to 15 birds — five in Nevada and ten in Utah. As in the experimental program, if and when a quota was reached the Service and the relevant State were to terminate the hunting season for tundra swans. The Service also issued a Finding of No Significant Impact (FONSI), see 40 C.F.R. § 1501.4(e), and therefore did not develop a full-blown environmental impact statement (EIS) for its proposal. The Service went on to incorporate the 2001 EA into its annual migratory bird hunting framework regulations for 2001, see 66 Fed.Reg. 49,478, 49,482-485 (Sept. 27), and again for 2002, 67 Fed.Reg. 59,110, 59,114-115 (Sept. 19).

Meanwhile, back in district court the Fund, referring to the 2001 EA, alleged the Service had "decid[ed] to establish a permanent hunting season for Trumpeter swans," in violation of various statutes and treaties. First, the Fund claimed the Service had violated § 706 of the APA by failing to provide the court with the "whole record" upon which it had based the 2001 EA. The district court denied the Fund's motion to compel because the Service had submitted "14 volumes containing more than 6,000 pages" and the Fund had failed to establish that "the administrative record was [not] properly designated." 245 F.Supp.2d at 57-58.

The Fund also claimed the Service had violated the NEPA when it set the maximum accidental take of trumpeter swans...