Fund for Animals v. Kempthorne
| Decision Date | 14 August 2008 |
| Docket Number | Docket No. 05-2603-cv. |
| Citation | 538 F.3d 124 |
| Parties | THE FUND FOR ANIMALS, Humane Society of 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-Appellants, v. Dirk KEMPTHORNE, Secretary of the Interior, H. DALE HALL, Fish and Wildlife Service Director, Chuck Conner, Acting Secretary of Agriculture, and Cindy Smith, Administrator of the Animal and Plant Health Inspection Service, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
States Attorney for the Southern District of New York, and Sara L. Shudofsky, Assistant United States Attorney, of counsel), New York, NY, for Defendants-Appellees.
Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges.
The plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York (P. Kevin Castel, Judge), which, among other things, dismissed on a motion for summary judgment their claims challenging the Public Resource Depredation Order, 50 C.F.R. § 21.48 (the "Depredation Order"), on the grounds that it violates treaty obligations of the United States and federal statutes. We consider on appeal whether the defendants issued the Depredation Order in compliance with the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and international treaties relating to the treatment of migratory birds to which the United States is a party.
The plaintiffs are individuals who, and organizations whose members, derive pleasure from observing water birds known as double-crested cormorants ("cormorants") in their natural habitat. These birds are not protected by the Endangered Species Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated by international treaties to which the United States is a party, and by federal statutes and regulations. The Fish and Wildlife Service ("FWS") has been delegated primary responsibility for regulating migratory birds, including cormorants. See Migratory Bird Permits; Regulations for Double-Crested Cormorant Management, 68 Fed.Reg. 12,653, 12,653 (Mar. 17, 2003).
The plaintiffs brought this action to challenge the Depredation Order, which, they allege, violates the relevant treaties and statutes by "authoriz[ing] state fish and wildlife agencies, Indian Tribes, and U.S. Department of Agriculture ... employees to kill an unlimited number of federally protected double-crested cormorants in New York and twenty-four other States, without any restrictions on time of year or location of the killings, without any advance notice to the FWS, and without any showing of specific, localized harm caused by the cormorants." Compl. ¶ 1.
Because they are migratory birds, cormorants regularly cross national boundaries. Prior to 1916, the treatment of these birds was regulated by individual nations within their own borders, making it difficult for any individual country to protect their populations from over-hunting or other harm. In order to create a "uniform system" for migratory birds that passed through their territories, the United States in 1916 negotiated a treaty with the United Kingdom, acting on behalf of Canada, to coordinate protection of certain bird populations. See Convention Between the United States of America and the United Kingdom of Great Britain and Ireland for the Protection of Migratory Birds in the United States and Canada, U.S.-Gr. Brit., Proclamation, Aug. 16, 1916, 39 Stat. 1702 ("U.K. Convention"). Similar treaties were later entered into by the United States with Mexico in 1936, Japan in 1972, and the Soviet Union in 1976. See Convention between the United States of America and the United Mexican States for the Protection of Migratory Birds and Game Mammals, U.S.-Mex., Feb. 7, 1936, 50 Stat. 1311 ("Mexico Convention"); Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, U.S.-Japan, Mar. 4, 1972, 25 U.S.T. 3329; Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 U.S.T. 4647. Each of these treaties lists the birds that are protected under its terms. Only the Mexico Convention, as amended in 1972, explicitly applies to cormorants.
The original 1936 Mexico Convention provides, in pertinent part:
ARTICLE I. In order that the species may not be exterminated, the [United States and Mexico] declare that it is right and proper to protect birds denominated as migratory ... by means of adequate methods which will permit, in so far as the respective high contracting parties may see fit, the utilization of said birds rationally for purposes of sport, food, commerce and industry.
ARTICLE II. The [United States and Mexico] agree to establish laws, regulations and provisions to satisfy the need set forth in the preceding Article, including:
A) The establishment of close seasons, which will prohibit in certain periods of the year the taking of migratory birds....
....
C) The limitation of their hunting to four months in each year, as a maximum, under permits issued by the respective authorities in each case.
D) The establishment of a close season for wild ducks....
...
ARTICLE IV.... [T]he following birds shall be considered migratory:
Migratory game birds. ...
Migratory non-game birds. ...
Mexico Convention, arts. I, II, IV, 50 Stat. at 1312-14. The 1972 amendments to the Mexico Convention added the cormorant family of birds, but did not specify whether it was a game or non-game bird. See Agreement between the Government of the United Mexican States and the Government of the United States of America Amending Article 4 of the Convention for the Protection of Migratory Birds and Game Mammals, Signed at Mexico City on February 7, 1936, U.S.-Mex., Mar. 10, 1972, 23 U.S.T. 260 ("Mexico Convention 1972 Amendments"). It is undisputed for present purposes that the cormorant is a non-game bird.
The MBTA implements these treaties as federal law. It was first enacted in 1918 to reflect the mandates of the U.K. Convention, and later amended to reflect each of the subsequently negotiated treaties. The statute makes it "unlawful at any time, by any means or in any manner," inter alia, to "take" birds listed in the relevant treaties. 16 U.S.C. § 703(a). To "take" a bird means "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect" it. 50 C.F.R. § 10.12.
The MBTA also delegates authority to the United States Secretary of the Interior,
from time to time, having due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds, to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof, and to adopt suitable regulations permitting and governing the same, in accordance with such determinations, which regulations shall become effective when approved by the President.
16 U.S.C. § 704. This authority has been subdelegated by the Secretary to the FWS. See 50 C.F.R. § 10.1.
When migratory birds converge in large numbers, they may consume large quantities of local plants, fish, or other species. In doing so, they may harm commercial activity dependent on those species. For example, as the cormorant population has grown over the past several decades, the FWS has received increasing numbers of complaints from fishermen and operators of aquaculture facilities, such as commercial catfish farms, asserting that cormorants are responsible for plundering the same fish that they seek to gather, cultivate, and sell.
When migratory birds cause, or are about to cause, such acts of "depredation,"1 the FWS may, upon application, issue a permit that allows a person to take migratory birds for depredation control purposes. See 50 C.F.R. § 21.41. Applications for such permits must include, inter alia, "(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." Id. Permittees are subject to a variety of conditions, including limitations on the manner in which the birds in question may be killed and the proper methods of disposing of their remains. Id.
As an alternative to individual permits, the FWS may, "[u]pon the receipt of evidence clearly showing that migratory game birds have accumulated in such numbers in a particular area as to cause or about to cause serious damage to agricultural, horticultural, and fish cultural interests ... issue by publication in the Federal Register a depredation order...." 50 C.F.R. § 21.42. Such an order must state explicitly that it is an "emergency measure designed to relieve depredations only" and it must impose certain restrictions on the manner in which birds may be killed. Id.
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