Humane Soc. of U.S. v. Hodel

• Decision Date: 24 February 1988
• Docket Number: No. 87-5095,87-5095
• Citation: 268 U.S. App. D.C. 165,840 F.2d 45
• Parties: , 18 Envtl. L. Rep. 20,636 HUMANE SOCIETY OF THE UNITED STATES, et al., Appellants, v. Donald P. HODEL, Secretary of Interior, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 45

840 F.2d 45

268 U.S.App.D.C. 165, 18 Envtl. L. Rep. 20,636

HUMANE SOCIETY OF THE UNITED STATES, et al., Appellants, v. Donald P. HODEL, Secretary of Interior, et al.

No. 87-5095.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 23, 1987.

Decided Feb. 16, 1988.

As Amended Feb. 24, 1988.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 84-03630).

David J. Hayes, with whom David F. Grady and Craig A. Hoover, Washington, D.C., were on the brief, for appellants.

Dirk D. Snel, Atty., Dept. of Justice, with whom Roger J. Marzulla, Acting Asst. Atty. Gen., and Martin W. Matzen, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees, Dept. of Justice and Dept. of Interior.

Paul A. Lenzini, with whom Luisa L. Lancetti, Washington, D.C., was on the brief for appellee, Intern. Ass'n of Fish and Wildlife Agencies.

C. King Mallory III, James F. Bowe, Jr. and Deborah S. Colby, Washington, D.C., were on the brief for appellee, Wildlife Legislative Fund of America, Inc.

Before WALD, Chief Judge, BORK,

Circuit Judge, ^* and GIBSON, ^** Circuit Judge.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

This appeal arises from a challenge lodged principally by the Humane Society of the United States ("HSUS" or "the Society") to a series of actions by the United States Fish and Wildlife Service ("the Wildlife Service" or "the Service") allowing hunting on some of America's national wildlife refuges. The Society, joined by one of its members, Roger Kindler, alleged that in sanctioning hunting, the Wildlife Service was violating four federal environmental statutes: the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4331 et seq.; the Endangered Species Act of 1973 (ESA), 16 U.S.C. Secs. 1531 et seq.; the Refuge Recreation Act of 1962 (RRA), 16 U.S.C. Secs. 460k et seq.; and its companion enactment, the National Wildlife Refuge System Administrative Procedure Act (NWRSAPA), 16 U.S.C. Sec. 668dd. The Society and Kindler sought declaratory and injunctive relief to prevent such hunting.

On cross-motions for summary judgment, the district court held that the Humane Society had no standing to bring this action and that Kindler had standing only to challenge NEPA violations occurring on the Virginia island of Chincoteague, the single refuge he had visited. The court reached this conclusion through a process of elimination. It first discounted some injuries described by HSUS and by Kindler as constitutionally noncognizable "emotional" injuries. It then characterized the remaining claims as involving injuries to "recreational interests" that fell outside the zone of interests protected by ESA and the two Refuge Acts. Finally, with respect to the remaining NEPA claims, the court held that the Humane Society had failed to satisfy the Supreme Court's requirements for associational standing because the "recreational" interest of Society members which the Society sought to vindicate in this action was not germane to the group's self-described mission of insuring the humane treatment of animals and other wildlife. That left one merits issue which Kindler was allowed to raise: whether the Wildlife Service had complied with NEPA in allowing a hunt opening at the Chincoteague site. The district court held that it had.

For reasons we enumerate, we reverse the district court's finding that the Humane Society had no standing to challenge the hunt openings, and remand to allow HSUS to pursue its challenge under all four statutes to the introduction of hunting. We affirm, however, the district court's finding on the merits that the Wildlife Service complied with NEPA when it permitted hunting at the Chincoteague preserve.

I. BACKGROUND

A. Statutory and Regulatory Background

America's network of national wildlife refuges dates back to 1903. In that year, President Theodore Roosevelt, acting in response to public concern about the killing of pelicans, herons, egrets, ibises, spoonbills and other water birds for the millinery trade, issued an executive order designating Florida's three-acre Pelican Island as a sanctuary where such fowl could not be killed. By the time Roosevelt left office in 1909, he had issued executive orders setting aside some 50 other preserves around the country for the enhancement and protection of wildlife ranging from migratory waterfowl to large mammals such as elks and bisons.

America today has more than 400 national wildlife refuges in 49 states and 5 trust territories. Together they cover nearly 90 million acres. Many were created in a manner akin to that first used by Roosevelt: by unilateral executive orders Although at first blush it might seem Orwellian to permit hunting in areas styled as wildlife "refuges," some of these executive and legislative measures creating refuges expressly left room for limited sport hunting. The most restrictive refuges have been those created expressly pursuant to the 1929 Migratory Bird Conservation Act (MBCA), 45 Stat. 1222, 1224 (1929), which flatly barred hunting of birds on certain lands. By contrast, other orders, not referring to the MBCA, have contained provisions generally prohibiting the taking of wildlife "except under such rules as may be promulgated by the appropriate Secretary." See, e.g., E.O. 8067 (Mar. 17, 1934); E.O. 8037 (Jan. 18, 1939); see also E.O. 2416 (July 25, 1940) (prohibiting the hunting, trapping or killing of birds or wild animals on 193 refuges "except as permitted by law or by rules and regulations of the Secretary of the Interior"). Similarly, some refuges created by land purchases were funded through enactments like the Duck Stamp Act of 1934, 48 Stat. 451, which as amended in 1958 allows public waterfowl hunting on 40% of the land. Finally, on a number of refuges created by federal legislation Congress has specifically authorized limited hunting of certain species.

providing for land withdrawals. Others emerged through statutorily-authorized land purchases. Most recent refuges have stemmed from congressional legislation setting aside certain areas as preserves.

In addition to these orders and enactments governing specific preserves, four broader federal environmental statutes, all invoked by the Humane Society in this legislation, provide standards generally relevant to the permissible scope of hunting on wildlife refuges:

(1) The Refuge Recreation Act of 1962 attempts to reconcile "mounting public demands for recreational opportunities" within the refuge system with that system's conservationist purposes. See 16 U.S.C. Sec. 460k. Toward this end, it forbids using refuges for forms of recreation "not directly related to the primary purposes and functions of the individual areas until the Secretary shall have determined ... that such recreational use will not interfere with the primary purposes for which the areas were established." Id. It authorizes public recreation only when, in the judgment of the Secretary of the Interior, such recreation "can be an appropriate incidental or secondary use." Id.

(2) The National Wildlife Refuge System Administration Act of 1966 broadly sets forth organizational and financial practices governing the refuge system. The subsection pertinent to this litigation authorizes the Secretary of the Interior to "permit the use of any area within the System for any purpose, including but not limited to hunting, fishing, public recreation and accommodations ... whenever he determines that such uses are compatible with the major purposes for which such areas were established." 16 U.S.C. Sec. 668dd(d)(1)(A). It limits hunting of migratory game birds to 40% of the territory within each refuge, "unless the Secretary finds that the taking of any species of migratory game birds in more than 40 percent of such area would be beneficial to the species." Id.

(3) The National Environmental Policy Act of 1969, the broadest enactment in scope, requires in pertinent part that every proposed federal action "significantly affecting the quality of the human environment" be prefaced by a detailed "environmental impact statement" taking into account certain conditions and factors. 42 U.S.C. Sec. 4332(C).

(4) The Endangered Species Act of 1973 sets forth procedures for preserving designated threatened or endangered species and requires, subject to certain exceptions, see 16 U.S.C. Sec. 1539, the Secretary to take such actions "necessary and advisable to provide for the conservation of such species." 16 U.S.C. Sec. 1533(d). It also prohibits a series of acts deemed threatening to those species. 16 U.S.C. Sec. 1538.

B. This Litigation

On November 29, 1984, the Humane Society, a national animal and bird welfare organization claiming 75,000 dues-paying members, filed suit against William P.

Clark, the then-Secretary of the Interior, and Robert A. Jantzen, the Director of the Wildlife Service. In this endeavor the Society was joined by Roger A. Kindler, a Humane Society member residing in Washington, D.C.

The essence of the Humane Society's complaint was that in the preceding few months, "an extraordinary number of wildlife refuges have been opened for the first time to hunting or have had the scope of hunting greatly expanded." See HSUS Complaint at p 18. The Society's complaint stated that on June 1, 1984, nine refuges had been opened for migratory bird hunting, upland game hunting and/or big game hunting, see id. (citing 49 Fed.Reg. 22819 (1984)), and that on September 21, 1984, another 13 refuges were opened to similar activities. See id. (citing 49 Fed.Reg. 37093 (1984)). The Society alleged that these actions violated NEPA, ESA and the two Refuge Acts. In particular, it asserted that the Wildlife Service had opened new refuges to hunting without completing the analyses required to ensure such hunting was compatible with the purposes for which each preserve had been designated, that the Service had...