National Audubon Soc. v. Hester
| Decision Date | 05 September 1986 |
| Docket Number | No. 86-5086,86-5086 |
| Citation | 801 F.2d 405 |
| Parties | NATIONAL AUDUBON SOCIETY v. F. Eugene HESTER, Acting Director, U.S. Fish & Wildlife Service, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-00053).
Karen Florini, with whom Peter R. Steenland and Donald A. Carr, Dept. of Justice, were on the brief, for appellants.
William A. Butler, with whom Hope M. Babcock, Kenneth Berlin, and Edward P. Gerwin, Jr., were on the brief, for appellees.
Eldon V.C. Greenberg was on the brief, for Greater Los Angeles Zoo Assn., amicus curiae, urging reversal.
Denis D. Smaage was on the brief, for California Fish and Game Com'n., amicus curiae, urging reversal.
Before EDWARDS, STARR and SILBERMAN, Circuit Judges.
Opinion PER CURIAM.
The California condor, the largest winged inhabitant of North America, has been decimated to the point where only twenty-six members of the species remain in existence. At the time this controversy began, all but six of the birds were kept in zoos in Los Angeles and San Diego as part of a breeding program designed to avert extinction of the species. This lawsuit arises from the U.S. Fish & Wildlife Service's decision to bring the remaining condors in from the wild. The district court granted plaintiff National Audubon Society's request for a preliminary injunction barring the Service from carrying out this decision, 627 F.Supp. 1419. Because we believe that the agency's decision constituted a reasoned exercise of its discretion in fulfilling its statutory mandate, we reverse.
In recent years, the Wildlife Service's energies have been engaged in inauspicious efforts to stem the condor flock's steady decline. In 1979, working in tandem with public and private groups (including the plaintiff), the Service developed a "Condor Recovery Plan." This plan had two principal elements: extensive tracking and study of wild birds, and the commencement of a captive propagation program. At the time, it was hoped that better information about the birds' lifestyle (and causes of death), together with enhanced breeding in capacity, could save the condor. The mortality rate among wild birds, however, proved to be alarming: in the winter of 1984-85, six of the then fifteen wild condors vanished. A common cause of death was believed to be lead poisoning following the birds' feeding on the carcasses of animals shot by hunters (the condor is a member of the vulture family).
After considering a wide range of scientific opinion, the Wildlife Service issued an Environmental Assessment in October, 1985 setting forth seven alternative courses of action for condor preservation. The option chosen by the agency combined capture of birds whose genes were poorly represented among the captive flock, maintenance of a small wild flock, and eventual release of young birds bred in captivity. This choice struck a balance between the competing considerations at stake (as well as the contending views of biologists and naturalists): on the one hand, bringing in the remaining wild condors would minimize mortality and increase the genetic diversity of the captive flock; on the other hand, preservation of a wild flock would provide "guide birds" available to lead captive-bred condors ultimately released, facilitate the improvement of techniques of protecting the birds, and prevent the erosion of public support for preserving the condors' habitat.
Shortly after this report was released, however, troubling news began reaching the Wildlife Service. One of the birds scheduled to remain in the wild appeared to be courting one of the birds slated for capture. Second, due to apparent zoo mismanagement, the young condors selected for release into the wilderness in the next year had grown too tame. And, most importantly, one condor inhabiting an area regarded as very safe, where "clean" carcasses were provided for the birds, nonetheless came down with lead poisoning (and has since died). In late December, the agency reversed its earlier decision and announced that all remaining wild birds would now be brought in. The federal Council on Environmental Quality certified that an emergency existed and that immediate documentation of the environmental effects of this decision was unnecessary. In any event, on December 23 the Service issued an "Addendum" to its October Environmental Assessment explaining the reasons why the agency now believed a different plan of action was called for.
This lawsuit followed. Audubon claimed that the Wildlife Service's action violated the Administrative Procedure Act (APA), 5 U.S.C. Sec. 701 et seq. (1982), the Endangered Species Act (ESA), 16 U.S.C. Sec. 1531 et seq. (1982), and the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321 et seq. (1982), and moved for a preliminary injunction barring the capture of the wild condors. The district court granted Audubon's motion, finding that the plaintiff had demonstrated a likelihood of success on the merits 1 and a balance of hardships in its favor. See 627 F.Supp. 1419 (D.D.C.1986). While acknowledging that a "reviewing court must be wary of substituting its own judgment for that of the agency," id. at 1422 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971)), the district court nevertheless concluded that the agency's decision was fatally flawed. The court opined that the Wildlife Service had exhibited insufficient analysis and explanation of its departure from past policy. In the court's view, this change of policy amounted to arbitrary and capricious action in violation of the above-mentioned statutes and threatened irreparably to harm the plaintiff's interests. 2
This court customarily reviews a district court's grant of preliminary equitable relief under the deferential abuse of discretion standard. See Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151 (1985). A preliminary injunction premised upon an erroneous view of the law, however, is not insulated from appellate review. See id. at 151-52; White House Vigil for ERA Comm. v. Watt, 717 F.2d 568, 571 (D.C.Cir.1983) (per curiam ); Ambach v. Bell, 686 F.2d 974, 979-80 (D.C.Cir.1982) (per curiam ). In this case, the district court's decision appears to have rested entirely on its view that the Wildlife Service had failed to justify its change of policy; the court relied upon this point not only in determining the plaintiff's likelihood of success on the merits, but also in concluding that the "balance of harms" favored Audubon. Since we believe, contrary to the district court, that the agency fully considered all appropriate courses of action and adequately explained its policy choice, we cannot uphold the district court's decision.
Although the district court relied upon the ESA and NEPA as well as the Administrative Procedure Act, it is clear that those statutes essentially place the same demands on agency decisionmakers as does the APA. See Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 684-86 (D.C.Cir.1982). Under the ESA, an agency's determination that its action will not threaten endangered species is to be set aside only if arbitrary and capricious. See id. at 686. Under NEPA, agencies must prepare an Environmental Impact Statement (EIS) whenever proposed major federal action will significantly affect the quality of the human environment, see 42 U.S.C. Sec. 4332(2)(C) (1982); an agency's decision not to prepare an EIS--because the proposed action will not significantly affect the environment--may be overturned, again, only if arbitrary and capricious. See Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C.Cir.1983); Cabinet Mountains Wilderness, 685 F.2d at 684; Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1002 (D.C.Cir.1979) (per curiam )...
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