Fund for Animals, Inc. v. Thomas

• Citation: 932 F. Supp. 368
• Decision Date: 08 August 1996
• Docket Number: Civil Action No. 95-1177 (TPJ).
• Parties: The FUND FOR ANIMALS, INC., et al., Plaintiffs, v. Jack Ward THOMAS, Chief, United States Forest Service, et al., Defendants.
• Court: U.S. District Court — District of Columbia

932 F. Supp. 368

The FUND FOR ANIMALS, INC., et al., Plaintiffs, v. Jack Ward THOMAS, Chief, United States Forest Service, et al., Defendants.

Civil Action No. 95-1177 (TPJ).

United States District Court, District of Columbia.

August 8, 1996.

Eric Robert Glitzenstein, Katherine Anne Meyer, Meyer & Glitzenstein, Washington, DC, for The Fund for Animals, Inc., Friends of the Bow, Biodiversity Legal Foundation, Northwest Ecosystem Alliance, Palouse Voice for Animals, Utah Wilderness Association, Donald J. Duerr, Leila R. Stanfield.

Michael J. Robinson, U.S. Department of Justice, Environment & Natural Resources

Division, Washington, DC, Joseph Robert Perella, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Jack Ward Thomas, Dan Glickman, Bruce Babbitt, Mollie Beattie.

Paul Anthony Lenzini, Donelan, Cleary, Wood & Maser, P.C., Washington, DC, Kristi Sansonetti, Cheyenne, WY, for State of Wyo.

William P. Horn, Birch, Horton, Bittner & Cherot, Washington, DC, for Wildlife Conservation Fund of America.

MEMORANDUM AND ORDER

JACKSON, District Judge.

Plaintiffs are two individuals and six organizations of like-minded persons who make extensive use of the national forests for hiking, camping and similar non-predatory purposes. Defendants are the heads of the U.S. Forest Service and the U.S. Fish and Wildlife Service ("FWS") and their cabinet office superiors, the Secretaries of Agriculture and Interior, respectively. The State of Wyoming has intervened as a party-defendant. The subject of their dispute is the policy the Forest Service adopted and published, after several false starts, in March of 1995 respecting the controversial practice of "baiting" for wild game animals being hunted on the federal forest lands entrusted to its care. 60 Fed.Reg. 14720 (March 20, 1995). The case is presently before the Court on cross-motions for summary judgment. Plaintiffs allege that the policy is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law, and must be set aside. See 5 U.S.C. § 706(2)(A).

The plaintiffs and their supporters regard the practice of "baiting" for game in general, and in particular, baiting for black bears, as odious. "Bear baiting" involves the placement of animal carcasses or offal, called "bait stations," in the vicinity of hunters' blinds to entice the animals into range by the scent. Plaintiffs say the bait stations are offensive to them in many respects. They are unsanitary, malodorous, unsightly, unsportsmanlike, and on occasion dangerous to non-hunters in the vicinity.

Plaintiffs' long-range objective is to cause the Forest Service, if it refuses to do so on its own, to assert complete and exclusive dominion over, and then to abolish most if not all hunting activity on federal forest lands. They would welcome a Forest Service regulation preempting any state law to the contrary to prohibit all game-baiting in the wilderness areas within its jurisdiction. For present purposes, however, they will be content with a judgment vitiating the Forest Service's current policy which they regard as no policy at all, and the worst of the alternatives proposed when the issue was open to public comment.¹

While it is officially neutral on the subject of baiting in principle, the Forest Service's policy is to leave the decision to prohibit baiting, or to allow but regulate it as a "hunting practice" or technique, to the individual states in which a particular national forest is situated, as it does with most other matters relating to the management of the indigenous fauna, in accordance with common law, tradition, and what it understands to be the will of Congress as consistently expressed in the several statutes defining its mission. The common law has always regarded the power to regulate the taking of animals ferae naturae to be vested in the states to the extent "their exercise of that power may not be incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution." Geer v. Connecticut, 161 U.S. 519, 527-28, 16 S.Ct. 600, 603-04, 40 L.Ed. 793 (1896). The National Forest System Organic Administration Act of 1897 establishing the national forest system reserved state civil and criminal jurisdiction over federal forest land to the states in which the forests were located, see 16 U.S.C. § 480, and each successive statute enacted since purporting to govern the management of the national forests has acknowledged and confirmed the situs states' continuing authority to regulate hunting and fishing thereon generally.²

Plaintiffs read the Forest Service's legislative mandate differently. They believe Congress has imposed fiduciary responsibilities on the Forest Service to conserve not only the forests themselves, but also their "primeval character" and "natural condition," see 16 U.S.C. § 1131(c), and thus by implication the animal populations that inhabit them. In particular, they contend that the Forest Service's new policy on baiting for game abdicates those responsibilities, and that, at a minimum, before it could lawfully do so the Forest Service had to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"), by preparing an environmental impact statement ("EIS") anticipating the consequences of a policy decision that plaintiffs perceive as a "major federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Plaintiffs assert that the Forest Service also ignored its obligation under the Endangered Species Act, 16 U.S.C. §§ 1532 et seq., ("ESA"), a default in which it was abetted by its co-defendant Fish and Wildlife Service, to engage in "formal consultation" respecting the likelihood that bear-baiting would jeopardize the continued existence of an "endangered" species, the grizzly bear, by enabling inadvertent "takings" of grizzlies over bait intended ostensibly to attract only black bear. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).

Whether an EIS is mandatory is initially determined by doing an Environmental Assessment ("EA"), 40 C.F.R. § 1501.4, or what is essentially a mini-EIS. If the agency's EA concludes that what it proposes to do is of negligible consequence to the environment, it issues a Finding of No Significant Impact ("FONSI"), as the Forest Service did here. (A.R. Docs. 160, 161). The Forest Service maintains that its policy of laissez faire is essentially one of inaction, i.e., a considered judgment to do nothing about game-baiting by leaving to the several states the responsibility for regulating the hunting of their wildlife, including baiting, unless and until a federal interest is seen to be imperilled in individual cases by an officer on the scene. In other words, the Forest Service's decision to revert...