Friends of Animals v. Clay

• Decision Date: 26 January 2016
• Docket Number: No. 14–4071–CV.,14–4071–CV.
• Citation: 811 F.3d 94
• Parties: FRIENDS OF ANIMALS, Plaintiff–Appellant, v. William CLAY, In His Official Capacity As A Deputy Administrator in the Department of Agriculture, Animal and Plant Health Inspection Services, An Agency of the United States, and United States Fish and Wildlife Service, An Agency of the United States, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

811 F.3d 94

FRIENDS OF ANIMALS, Plaintiff–Appellant,

v.William CLAY, In His Official Capacity As A Deputy Administrator in the Department of Agriculture, Animal and Plant Health Inspection Services, An Agency of the United States, and United States Fish and Wildlife Service, An Agency of the United States, Defendants–Appellees.

No. 14–4071–CV.

United States Court of Appeals, Second Circuit.

Argued: Dec. 10, 2015.

Decided: Jan. 26, 2016.

Michael Ray Harris, Friends of Animals, Centennial, CO, for Plaintiff–Appellant.

Margaret M. Kolbe (Varuni Nelson and Sandra L. Levy, on the brief), Assistant United States Attorneys, for Robert L. Capers, United States Attorney, Eastern District of New York, Brooklyn, NY, for Defendants–Appellees.

Before: CABRANES, POOLER, and LYNCH, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

Plaintiff-appellant Friends of Animals ("FOA") appeals an October 3, 2014 order of the United States District Court for the Eastern District of New York (John Gleeson, Judge ) granting summary judgment in favor of defendants-appellees William Clay ("Clay"), in his official capacity as a Deputy Administrator in the Department of Agriculture, the United States Animal and Plant Health Inspection Service ("APHIS"), and the United States Fish and Wildlife Service ("FWS"). FOA brought this action challenging FWS's issuance of a "depredation permit" to the Port Authority of New York and New Jersey (the "Port Authority"). The permit authorizes the emergency "take" of migratory birds that threaten to interfere with aircraft at John F. Kennedy International Airport ("JFK"). FOA argues that FWS's own regulations unambiguously prohibit it from issuing such a permit and that the permit should therefore be set aside as the product of agency action that was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). FWS argues that its regulations unambiguously authorize the issuance of such a permit. On our de novo review of the District Court's grant of summary judgment, see Karpova v. Snow, 497 F.3d 262, 267 (2d Cir.2007), we agree with FWS, and accordingly AFFIRM.

BACKGROUND

The taking¹ of migratory birds is governed by the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 et seq., and regulations promulgated thereunder. The MBTA, which implements a series of treaties as federal law, see Fund for Animals v. Kempthorne, 538 F.3d 124, 126–28 (2d Cir.2008), prohibits the taking of any bird protected by those treaties "[u]nless and except as permitted by regulations" promulgated under the statute, 16 U.S.C. § 703(a). The Secretary of the Interior is charged with "determin[ing] when ... it is compatible with the terms of the conventions to allow" the taking of migratory birds and with "adopt[ing] suitable regulations" in accordance with those determinations. Id. § 704(a). One such regulation is 50 C.F.R. § 21.41. Under § 21.41, FWS may issue "depredation permits" that authorize the taking (or possession or transport) of migratory birds that are causing injury to certain human interests. 50 C.F.R. § 21.41.²

Migratory birds that congregate near airports pose a well-known threat to human safety. Indeed, "bird strikes" have resulted in several near-catastrophes at JFK and nearby LaGuardia Airport ("LaGuardia"). See J.A. 396 (describing a 1975 collision between herring gulls and a DC–10, which caused the aircraft's engine to explode and the aircraft itself to catch fire); id. (describing a 1995 collision between two Canada geese and a Concorde jet, which caused "major damage" to the aircraft); J.A. 405 (describing a 2009 incident in which a pilot was compelled to land a jetliner on the Hudson River after it collided with a flock of geese).³ In order to reduce the risks associated with such bird strikes, the Port Authority—which operates JFK, as well as LaGuardia—has maintained a depredation permit since 1994, renewing it each year.

The permit of which FOA complains was issued by FWS on June 11, 2014.⁴ It identifies eighteen species of migratory birds that have, in the past, compromised public safety at JFK, and authorizes the Port Authority to take a quota of birds of each species. See J.A. 1590.

In addition to setting out these species-specific quotas, the challenged permit contains an "emergency-take" provision. This provision empowers the Port Authority, "in emergency situations only, " to take any migratory bird (except bald eagles, golden eagles, or endangered or threatened species) that poses a "direct threat to human safety"—defined as a "threat of serious bodily injury or a risk to human life"—even if it is of a species not listed on the permit.⁵ J.A. 1591 (emphasis in original). FWS "rarely includes an emergency take provision in its migratory bird permits," but—mindful of the "grave risks" that arise when birds congregate near aircraft—it makes an exception for airports. J.A. 1569–70.

DISCUSSION

FOA directs its challenge at the 2014 permit's emergency-take provision. According to FOA, 50 C.F.R. § 21.41 does not authorize FWS to issue a permit that allows the emergency take of a migratory bird irrespective of its species. Instead, FOA argues, permit applicants like the Port Authority must "provide species[-]specific information" to FWS, and FWS may authorize the taking of only those species specifically listed on the permit. Contending that FWS's alleged failure to abide by the requirements of § 21.41 has resulted in the Port Authority's unlawful taking of a number of migratory birds, including three snowy owls killed in December 2013, FOA asks us to invalidate the operative permit as the product of agency action that was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

FOA concedes that if we read § 21.41 as it urges, situations might arise in which (1) a migratory bird, of a species not listed on the Port Authority's permit because its presence at JFK was unforeseen, poses a direct threat to an aircraft, and (2) Port Authority officials are not empowered by permit to take the bird because its species is not listed.⁶ It notes that, should such a situation come to pass, it would likely be best for Port Authority officials to take the bird notwithstanding their apparent lack of authority to do so. FOA posits that these officials might be shielded by an affirmative defense of necessity, and at all events the government would probably decline to prosecute such conduct.

We conclude that § 21.41 does not place Port Authority officials in the untenable position of having to choose between violating federal law and deliberately ignoring serious threats to human safety. Rather, the regulation plainly authorizes FWS to issue depredation permits that contain non-species-specific emergency-take provisions.

FWS's authority to issue depredation permits under § 21.41 is limited in certain respects by subsections (c) and (d) of that provision. Subsection (d) provides, for instance, that a permit's duration is limited to one year. Subsection (c) sets forth conditions common to all permits, such as the prohibition of certain hunting practices and mandatory steps for disposing of birds that have been killed; it also states that depredation permits are subject to the general conditions set forth in 50 C.F.R. Part 13. Various provisions in Part 13, in turn, further hem in the agency's permitting authority. See, e.g., 50 C.F.R. § 13.21(a) ("No permit may be issued prior to the receipt of a written application therefor...."); id. § 13.21(c)(1) (providing that no permit may be issued to a person who has been convicted of a felony under, inter alia , the MBTA, absent waiver of disqualification by the Director of FWS). But among the express limitations on FWS's discretion imposed by § 21.41(c) -(d) and Part 13, we find nothing to indicate that FWS may not issue a permit that contains an emergency-take provision. Accordingly, unless some other feature of the regulatory regime counsels otherwise, we must conclude that FWS has authority to issue permits of the type challenged here.

FOA argues that this other feature is found in 50 C.F.R. § 21.41(b). This provision states that an application for a depredation permit must contain the following information: "(1) A description of the area where depredations are occurring; (2) The nature of the crops or other interests being injured; (3) The extent of such injury; and (4) The particular species of migratory birds committing the injury." According to FOA, that regulation, when read in connection with § 21.41(c)(1) —which provides that "[p]ermittees may not kill migratory birds unless specifically authorized on the permit"—makes clear that a depredation permit may not authorize the taking of bird species not listed on the permit's face.⁷

We disagree. Section 21.41(b) by its terms governs the conduct of applicants, not FWS, and specifies what information must be included in the permit application, not the permit itself. Indeed, the provision is styled as a direct address to applicants, to whom it gives point-by-point instructions for seeking a permit. See 50 C.F.R. § 21.41(b) ("Submit application for depredation permits to the appropriate Regional Director (Attention: Migratory bird permit office). You can find addresses for the Regional Directors in 50 C.F.R. 2.2. Each application must contain the ... following additional information...."). FOA identifies no particular reason why we should read this subsection, contrary to its plain language, as a limit on FWS's authority to issue permits rather than as a means to ensure that applicants provide FWS with information germane to the permitting determination. See Florez v. Callahan, 156 F.3d 438, 444–45 (2d Cir.1998) (a court must give effect to a regulation's plain language). Section 21.41(b) is a hopelessly slender reed on which to rest the argument that FWS is powerless to authorize the Port Authority to take migratory birds that threaten air...