Fund for Animals v. Norton

• Decision Date: 28 March 2005
• Docket Number: No. 04 Civ. 959(PKC).,04 Civ. 959(PKC).
• Citation: 365 F.Supp.2d 394
• Parties: The FUND FOR ANIMALS, Humane Society for the United States, Defenders of Wildlife, Animal Rights Foundation of Florida, Donald Feare, Gustav W. Verderber, Julie Baker, Kristi Gholson, Collette Adkins Giese, Marian Probst Plaintiffs, v. Gale NORTON, Secretary, U.S. Department of Interior, Steven Williams, Director, Fish and Wildlife Service, Anne Veneman, Secretary, U.S. Department of Agriculture, Bobby Accord, Administrator, Animal and Plant Health Inspection Service, Defendants.
• Court: U.S. District Court — Southern District of New York

365 F.Supp.2d 394

The FUND FOR ANIMALS, Humane Society for the United States, Defenders of Wildlife, Animal Rights Foundation of Florida, Donald Feare, Gustav W. Verderber, Julie Baker, Kristi Gholson, Collette Adkins Giese, Marian Probst Plaintiffs, v. Gale NORTON, Secretary, U.S. Department of Interior, Steven Williams, Director, Fish and Wildlife Service, Anne Veneman, Secretary, U.S. Department of Agriculture, Bobby Accord, Administrator, Animal and Plant Health Inspection Service, Defendants.

No. 04 Civ. 959(PKC).

United States District Court, S.D. New York.

March 28, 2005.

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Howard M. Crystal, Meyer & Glitzenstein, Washington, DC, Leonard D. Egert, New York City, for Plaintiffs.

Sarah Sheive Normand, U.S. Attorney's Office, SDNY, New York City, for Defendants.

MEMORANDUM AND ORDER

CASTEL, District Judge.

The double-crested cormorant (Phalacrocorax auritus) is a water bird native to North America. It is a fish-eating bird with a hooked bill, turquoise eyes, a long tail, dark brown in color with two white crests of feathers that appear on its head during breeding season.

This lawsuit arises over federal efforts to manage the nation's population of double-crested cormorants. According to the administrative record, the species has been responsible for the loss of at least $25 million in annual catfish production, largely in the Mississippi Delta. The plaintiffs challenge two rules that they assert were adopted in violation of treaty obligations and a battery of federal statutes. They seek declaratory and injunctive relief.

Both sides have moved for summary judgment. For the reasons explained below, the plaintiffs' motion is denied, and the defendants' motion is granted.

Background

According to the United States Fish and Wildlife Service (the "Agency," "Fish and Wildlife Service" or "FWS"), the double-crested cormorant is one of 38 cormorant species worldwide, and one of six found in North America. (FWS at 3161)¹ Double-crested cormorants often live in flocks, and are sometimes confused with geese or loons. (FWS at 3161) Prior to 1970, the cormorant population was jeopardized by DDT and other organochlorine contaminants. (Pl. 56.1 ¶ 3; Def. 56.1 at 11; Migratory Bird Permits; Regulation for Double-Crested Cormorant Management, 68 Fed.Reg. 12,653 (March 17, 2003)) The population recovered during the 1970s and 1980s, but its growth rate slowed during the 1990s. (Pl. 56.1 ¶ 3; Def. 56.1 at 11; FWS at 5507, 5510-11) It is not a species protected by the Endangered Species Act, 16 U.S.C. § 1531, et seq. The estimated population of the bird is about 2 million. (FWS at 5540)

As the population expanded and the birds became more visible, fishermen and others complained that the birds were responsible for declining fish stocks. (Pl. 56.1 ¶ 4; Def. 56.1 at 11-12; FWS at 9910) Cormorants also were drawn to the live fish raised in aquaculture facilities for human consumption. Migratory Bird Permits; Regulation for Double-Crested Cormorant Management, 68 Fed.Reg. 58,022, 58,026 (Oct. 8, 2003). Specifically, the cormorants have proved detrimental to commercial catfish farms located near the Mississippi Delta. Id. The birds' eating habits prompted the aquaculture industry to seek curbs on the cormorant population.² (Pl. 56.1 ¶ 5; Def. 56.1 at 12; FWS at 5493, 5511, 5515, 5566-68)

The Fish and Wildlife Service is the federal agency with primary responsibility for the regulation of migratory birds. 68 Fed.Reg. 12,653. Its authority to regulate the double-crested cormorant arises from the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 et seq., which implements bilateral conventions that the United States signed with Great Britain, Mexico, Japan and Russia. The double-crested cormorant received federal protection under the 1972 amendment to the Convention for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, United States-Mexico, 50 Stat. 1311, T.S. No. 912. Under the statute's terms, protected birds may not be "take[n]" except as authorized by regulations implementing the MBTA. 16 U.S.C. § 703. According to 50 C.F.R. § 10.12: "Take means to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect." See also Newton County Wildlife Ass'n v. U.S. Forest Service, 113 F.3d 110, 115 (8th Cir.1997) ("take" and "kill" mean physical contact the type of which is engaged in by hunters and poachers), cert. denied, 522 U.S. 1108, 118 S.Ct. 1035, 140 L.Ed.2d 102 (1998).

In an attempt to address complaints about the double-crested cormorant's deleterious effects on aquaculture, the FWS adopted the Aquaculture Depredation Order ("ADO") in 1998. 50 C.F.R. § 21.47. Depredation is defined as "an act of plundering, despoiling, or making inroads." WEBSTER'S THIRD INT'L DICTIONARY UNABRIDGED (2002). The ADO permits landowners, operators and tenants of aquaculture facilities to utilize firearms to take double-crested cormorants when the birds are found committing or about to commit acts of depredation on the aquaculture stock. 50 C.F.R. § 21.47. It also permits the killing of double-crested cormorants only within the boundaries of aquaculture facilities in thirteen states. 50 C.F.R. § 21.47(c)(1).³

Subsequent to the ADO's issuance, the Fish and Wildlife Service continued to receive complaints about the cormorant population. By 1999, the regional offices of the Fish and Wildlife Service received an increasing number of applications for cormorant depredation permits unrelated to aquaculture, at which time FWS began to explore additional methods to control the cormorant population. (Pl. 56.1 ¶ 6; Def. 56.1 at 12; FWS at 9884-92; 9906-19) In addition to decrying the birds' effects on aquaculture, the complaints received by FWS claimed that the cormorants were destroying vegetation, causing erosion, displacing other bird species and reducing sport fish populations. (Def. 56.1 ¶ 5; FWS at 9910) In November 1999, the Fish and Wildlife Service issued a Notice of Intent to develop a national management plan and to prepare an Environmental Impact Statement ("EIS") to consider different methods of addressing complaints over cormorant activities without unduly depleting the bird's population. (Pl. 56.1 ¶ 6; Def. 56.1 at 12; Migratory Bird Permits; Notice of Intent To Prepare an Environmental Impact Statement and National Management Plan for the Double-Crested Cormorant, 64 Fed.Reg. 60,826 (Nov. 8, 1999)) The Fish and Wildlife Service received public comments in response to the Notice of Intent, which included submissions that were both supportive and critical of widespread efforts to limit the cormorant population. (Pl. 56.1 ¶ 7; Def. 56.1 at 13; FWS at 21-119, 436-521, 608-11, 1281-87, 1292-94, 1312-19)

A so-called "Cormorant Team" formed for the purpose of evaluating methods of managing the cormorant population. (Pl. 56.1 ¶ 8; Def. 56.1 at 13) The team was comprised of staff from the Fish and Wildlife Service's Division of Migratory Birds Management, migratory bird staffers from the FWS's regional offices, in consultation with representatives of the Animal and Plant Health Inspection Service's ("APHIS") Wildlife Services division. (Pl. 56.1 ¶ 8; Def. 56.1 at 13-14; FWS at 11109) As of October 2000, the Cormorant Team considered several population-management alternatives, including, but not limited to, the following: (1) no damage control; (2) non-lethal management; (3) maintaining the then-existing system by pursuing no action; (4) increased lethal control, possibly via an expanded depredation order, (5) coordinated statewide management; (6) allowing for sport-hunting and (7) "[r]escindment of MBTA protection." (FWS at 11433)

In August 2001, the FWS's Division of Migratory Birds issued a draft Environmental Impact Statement ("Draft EIS") to the Fish and Wildlife Service's regional offices. (FWS at 2729-2891) An EIS is required by statute. 42 U.S.C. § 4332(2)(C). In the Draft EIS, the FWS set forth the proposed action of issuing a "Public Resource Depredation Order" (the "Order" or "PRDO") that would allow state and federal wildlife agencies "greater flexibility and timeliness in dealing with [double-crested cormorant]-related public resource conflicts, while maintaining Federal oversight of [double-crested cormorant] populations." (FWS at 2748) The ADO would remain in place, and expanded to permit the thirteen affected states to engage in winter roost control. (FWS at 2748) In all other states, aquaculture depredation would be addressed through depredation permits. (FWS at 2748) State and federal agencies would be required to record the location of birds taken, and population counts of the double-crested cormorant would occur at ten-year intervals. (FWS at 2748-49) In addition, state and federal authorities would be permitted to take double-crested cormorants on public lands or waters. (FWS at 2749) The Draft EIS also considered whether population-control measures would adversely affect other migratory birds or any species protected by the Endangered Species Act. (FWS at 2749)

The Fish and Wildlife Service released the Draft EIS for public comment in December 2001. Notice of Availability; Draft Environmental Impact Statement on Double-Crested Cormorant Management, 66 Fed.Reg. 60,218 (Dec. 3, 2001). As summarized in the Federal Register,

Our proposed action ... modifies the existing Aquaculture Depredation Order and establishes a new Public Resource Depredation Order to allow public resource managers greater flexibility in dealing with cormorant conflicts while ensuring Federal oversight via reporting and monitoring requirements.

Id. The publication of the Draft EIS was followed by a 100-day public comment period, including 10 public meetings. Notice of Availability; Final Environmental Impact Statement on Double-Crested Cormorant...