Friends of Animals v. Clay et al
Filing
40
ORDER denying 34 Motion to Dismiss for Lack of Jurisdiction; granting 34 Motion for Summary Judgment. See the attached order, which denies defendants' motion to dismiss for lack of jurisdiction and grants defendants' motions for summary judgment. Ordered by Judge John Gleeson on 10/3/2014. (Aronoff, Peter)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FOR ONLINE PUBLICATION ONLY
FRIENDS OF ANIMALS,
Plaintiff,
- versus -
MEMORANDUM
AND ORDER
13-CV-7293 (JG)
WILLIAM CLAY, in his official capacity as a
Deputy Administrator in the Department of
Agriculture,
ANIMAL AND PLANT HEALTH
INSPECTION SERVICE, an agency of the
United States; and
U.S. FISH AND WILDLIFE SERVICE, an
agency of the United States,
Defendants.
A P P E A R A N C E S:
FRIENDS OF ANIMALS
PO Box 102041
Denver, CO 80250
By:
Jennifer Barnes
Attorneys for Plaintiff
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Margaret M. Kolbe, of counsel
Attorney for Defendants
JOHN GLEESON, United States District Judge:
Plaintiff Friends of Animals (“FoA”) brings this action under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 500 et seq., challenging the defendants’ actions in approving
and helping to carry out a plan by which birds are killed at John F. Kennedy International Airport
(“JFK”) in order to prevent their interference with aircraft. Two defendants – William Clay, a
Deputy Administrator in the Department of Agriculture, and Animal and Plant Health Inspection
Service (“APHIS”) – have moved to dismiss the complaint for lack of standing. All three
defendants, including U.S. Fish and Wildlife Service (“FWS”), have also moved for summary
judgment on the merits based on the administrative record.
For the reasons that follow, defendants’ motion to dismiss is denied, and
defendants’ motions for summary judgment are granted.
BACKGROUND
The Port Authority of New York and New Jersey (“PA”), which is not a party to
this case, operates JFK, located just within the bounds of New York City on the southern shore
of Long Island. The airport is located immediately next to Jamaica Bay and the Jamaica Bay
Wildlife Refuge. The Federal Aviation Administration (“FAA”) has implemented regulations
requiring airports to manage “wildlife hazard[s],” including the dangers presented when planes
strike wildlife or ingest animals into their engines, or when animals are present in such numbers
that there is a risk of such incidents. See 14 C.F.R. § 139.337. The PA has adopted a so-called
“Bird Hazard Reduction Program” (“BHRP”) to comply with these regulations and ensure safe
airplane traffic at JFK. The first version of the current BHRP was adopted in 1994 and focused
on the risks to aircraft posed by gulls; it was embodied in an “environmental impact statement”
(“EIS”) required by the National Environmental Policy Act (“NEPA”). In 2012, amendments to
the BHRP were finalized, including plans to control risks from many other bird species; this was
2
done by means of a supplemental environmental impact statement (“SEIS”). See APHIS_1APHIS_483.1
The Secretary of Agriculture is “authorized . . . to conduct activities and to enter
into agreements with States, local jurisdictions, individuals, and public and private agencies,
organizations, and institutions in the control of nuisance mammals and birds . . . .” 7 U.S.C.
§ 426c. That authority is delegated to the federal Animal and Plant Health Inspection Service
(“APHIS”), an agency of the Department of Agriculture. See 7 C.F.R. § 2.80(a). In turn,
Wildlife Services (“WS”), which is a component of APHIS,2 conducts animal control activities,
including those at JFK. Animal control activities are authorized under so-called “cooperative
service agreements” with local institutions and governments. Here, WS has entered into such an
agreement with Port Authority: Since 1991, WS has had personnel present at JFK to shoot birds.
See APHIS_43. Furthermore, WS has had a substantial role in designing the current bird control
activities at the airport: it took the lead in authoring the original 1994 EIS. See APHIS_1342.
WS also led the effort to expand and adapt the program, starting in 2006, and culminating in the
2012 SEIS. See See APHIS, “Supplemental Environmental Impact Statement for Gull Hazard
Reduction Program at John F. Kennedy International Airport,” 71 Fed. Reg. 16547 (April 3,
2006).
Broadly, the SEIS proposes six alternatives to remedy the perceived shortcomings
of the original BHRP: keeping the same measures already in place; adding some nonlethal birdmanagement methods both on and off the airport grounds; adding new on-airport lethal controls;
1
Citations to the administrative record are made in the consecutive pagination format in which the
documents were produced. APHIS’s materials are on the docket at entries 16 through 32; FWS’s are primarily
exhibits to docket entry 15.
2
Wildlife Services is entirely distinct from the U.S. Fish and Wildlife Service, an agency with the
U.S. Department of the Interior, and a codefendant in this case. See http://en.wikipedia.org/wiki/Mimicry.
3
adding new off-airport lethal controls; reducing or relocating a laughing gull colony close to the
airport; or do all of the above except for managing the laughing gulls. See, e.g., APHIS_10AHPIS_13. The final alternative was the one chosen.
Also relevant to this case is the Migratory Bird Treaty Act, federal legislation that
implements several bilateral treaties about migratory birds. The MBTA protects covered
migratory birds from numerous activities, including especially hunting or other killing, but
authorizes those activities under limited circumstances. FWS is empowered under the MBTA to
issue depredation permits and depredation orders, two distinct authorizations that let entities kill
protected birds. FWS has long issued the Port Authority depredation permits for taking
migratory birds at JFK; the two permits relevant to this case were issued on February 5, 2013,
and on June 11, 2014. See 2013 permit, FWS_1520-21, DE 15-20; (2014 permit), FWS_216872, DE 37-3.
In December of 2013, Port Authority personnel shot and killed three snowy owls
pursuant to permits issued by both FWS and the New York State Department of Environmental
Conservation. This lawsuit followed.
DISCUSSION
A.
Standard of Review under the APA
Plaintiff’s causes of action in this case arise under the Administrative Procedure
Act, 5 U.S.C. § 701 et seq. The APA requires a court to “hold unlawful and set aside agency
action, findings, and conclusions” that the court finds to be, inter alia, “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In APA
cases, a reviewing Article III court decides questions of law de novo. See id. § 706 (“[T]he
reviewing court shall decide all relevant questions of law, interpret constitutional and statutory
4
provisions, and determine the meaning or applicability of the terms of an agency action.”). The
court should only disturb conclusions of fact if they are “unsupported by substantial evidence,”
id. § 706(2)(E), which “‘means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Fund for Animals v. Kempthorne, 538 F.3d 124, 132 (2d Cir.
2008) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)).
As to the agency’s overall decision, “[t]he task of the reviewing court . . . is to
determine whether the agency has considered the pertinent evidence, examined the relevant
factors, and articulated a satisfactory explanation for its action including whether there is a
‘rational connection between the facts found and the choice made.’” J. Andrew Lange, Inc. v.
F.A.A., 208 F.3d 389, 391 (2d Cir. 2000) (quoting Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962)).
B.
NEPA
One of FoA’s claims in this case is that agency action must be set aside under the
APA because the action failed to comply with the procedural requirements put in place by the
National Environmental Policy Act. NEPA requires an agency to issue an environmental impact
statement before taking administrative action “significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). As the Second Circuit explained in Fund for Animals v.
Kempthorne,
NEPA is a procedural statute that mandates a process rather than a
particular result. It does not command an agency to favor any
particular course of action, but rather requires the agency to
withhold its decision to proceed with an action until it has taken a
‘hard look’ at the environmental consequences. The court’s role is
to ensure that NEPA’s procedural requirements have been
satisfied, not to interject itself within the area of discretion of the
executive as to the choice of the action to be taken.
538 F.3d at 137 (internal quotation marks, citations, and alterations omitted).
5
C.
Standing
Defendants APHIS and its administrator, William Clay, have moved to dismiss
this action for lack of standing. As a general matter, a plaintiff must meet three requirements to
have standing consistent with Article III of the United States Constitution:
First, the plaintiff must have suffered an “injury in fact,” – that is,
“an invasion of a legally protected interest which is (a) concrete
and particularized and (b) actual or imminent, not conjectural or
hypothetical.” Second, “there must be a causal connection between
the injury and the conduct” of which the plaintiff complains. And
third, “it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.”
E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 449-50 (2d Cir. 2014) (internal citations
omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Although FoA’s briefing addresses the injury and causation requirements, the
defendants’ really only argue that plaintiffs cannot show redressabilty, the third Lujan
requirement. The purpose of the redressability requirement is similar to that of the mootness
doctrine. Unlike some other court systems, our federal courts do not make abstract declarations
of rights; we only decide particular cases and controversies, with the effect (familiar in the
common law system) of establishing legal principles as we go. If, despite a court’s declaration
of rights, the plaintiff’s injury would continue, then the plaintiff cannot pursue such “relief” in
federal court.
It is the plaintiff’s burden to demonstrate redressability, but “[a] plaintiff need not
demonstrate with certainty that her injury will be cured by a favorable decision.” E.M., 758 F.3d
at 450. Rather, “she must at least make a showing that there is a ‘substantial likelihood that the
relief requested will redress the injury claimed.’” Id. (quoting Duke Power Co. v. Carolina
Envtl. Study Grp., Inc., 438 U.S. 59, 75 n. 20 (1978)).
6
Clay and APHIS contend that even if I enjoined them from participating in
wildlife control activities at JFK, that would not eliminate the plaintiffs’ alleged injury. That is
because although personnel from WS (an organization within APHIS) have carried out some of
the shooting, the Port Authority is actually responsible for administering the BHRP and keeping
the air clear and safe near JFK. APHIS personnel are present only under what is effectively a
contract – the Cooperative Service Agreement, APHIS_6892-6908. Furthermore, these
defendants contend, if WS were enjoined, PA would still find some entity to carry out the BHRP.
PA is under a federal legal obligation to continue managing bird hazards at JFK, and in any
event, it is concerned about safe air travel at JFK.
Defendants’ arguments have some force, but I conclude that FoA has shown
enough here to satisfy Article III. Defendants correctly point out that the Port Authority, which
in many ways is the most important actor, is not a party to the case. Even more strongly, PA is
not a federal agency or actor, and it is not directly subject to the laws (NEPA and the APA)
sought to be enforced here. But the fact that the ultimate relief a party seeks depends in part on a
third party’s actions is not an insurmountable barrier to standing. For example, the Supreme
Court has stated that when a favorable ruling would change a party’s legal status, which would in
turn create “a significant increase in the likelihood that the plaintiff would obtain relief that
directly redresses the injury suffered” from a third party, that is enough for standing. Utah v.
Evans, 536 U.S. 452, 464 (2002). Wright and Miller note that standing has been found in cases
not only where a third party would be forced to act based on a decision affecting a defendant in
the case, but even where “[t]he defendant may have some authority that enables it to influence,
or perhaps command, desired behavior by the nonparty.” Wright et al., 13A Fed. Prac. & Proc.
Juris. § 3531.6 (3d ed. 2014 Suppl).
7
The potential injury FoA identifies – a disruption of the aesthetic interest of
observing birds in the vicinity of the airport, undisturbed by lethal actions against them, see First
Amended Complaint (“FAC”) ¶ 13, DE 5 – could be diminished by preventing WS from
participating in the BHRP, even if killing were not totally stopped. This is so for several reasons.
WS played the leading role in developing both the original BHRP (as embodied in the 1994 EIS)
and the amended BHRP. The permit under which WS operates does refer to other parties, such
as private contractors, who are authorized to take birds and therefore fulfill some of WS’s role.
See FWS_1527. But those references are vague, and SEIS contemplates that WS will provide
primary staffing for lethal takes. WS was not just brought in after the fact to carry out some
plan; WS is implementing its own plan about which it has expertise developed over the last
twenty years. Furthermore, the PA currently pays WS more than $700,000 a year in contractual
fees to assist in carrying out the BHRP, APHIS_6894, so it seems that at a minimum, PA would
need to rethink its allocation of resources. PA might wish to consider other alternatives if the
plan that has been in effect for more than twenty years is interrupted; it might not be possible to
find a contractor for the same price. Under these circumstances, an order entered against WS
would have a “substantial likelihood” of disrupting the BHRP and, as FoA puts it, might cause
the “cessation of at least some killing.” FoA Br. at 11. It is not clear that in the long run, an
order in FoA’s favor against APHIS and Clay would end lethal actions against birds outright.
But it is not speculative to think that there would be some reduction, and I conclude that this is
sufficient for Article III standing.
D.
Merits of the APA/NEPA Claim against APHIS and Clay
Much of the plaintiff’s argument on its NEPA claim against APHIS and Clay
focuses on the SEIS’s purported lack of species-specific information and analysis. See FAC ¶ 74
8
(“[T]he [SEIS] contains no information regarding whether certain bird species might be handled
as effectively using non-lethal measures in lieu of lethal controls. In short, the FSEIS fails
provide sufficient information so that one could understand what methods might actually be used
in various situations or with a specific bird species.”). FoA also argues that APHIS violated
NEPA by failing to adequately consider the effect of lethal action on bird populations in the area,
SAC ¶ 75, and failing to consider “the possibility that adding to lethal population control
methods will worsen rather than reduce the total risks posed by aircraft collisions with birds,”
SAC ¶ 76.
At the outset, I agree with FoA that the SEIS does not on its face provide
information by species describing when (if at all) a given species might be dealt with in a
nonlethal way. The SEIS does provide species-specific information about animals that present a
danger of strikes at JFK, see SEIS 1.7, APHIS_57-APHIS_94, but each section describes the
behavior of each species, the frequency of strikes, and the danger the species presents, not the
measures that work for each species. Only in later sections – particularly Chapter 4 of the SEIS,
which evaluates alternatives’ feasibility and efficacy, and Chapter 6, which predicts the
environmental impact of each alternative – does the SEIS discuss whether particular control
methods work for particular species, and then only sporadically.
Furthermore, I agree with FoA that APHIS was required to take a “hard look” at
the impact of the BHRP program (and especially the lethal components of the program) on birds,
since birds are indisputably part of the “human environment” that NEPA protects. See 42 U.S.C.
§ 4332(2)(C); 40 C.F.R. 1508.14 (“Human environment shall be interpreted comprehensively to
include the natural and physical environment and the relationship of people with that
environment.”).
9
But FoA has not demonstrated why NEPA is violated by APHIS’s failure to give
consistent species-specific analysis on which nonlethal methods might be effective for each
species. The argument would be more persuasive if FoA could show that APHIS was required
by law to prioritize nonlethal control methods as a substantive matter. But it has not done so,
because NEPA does not demand particular substantive results. It requires only that APHIS
assess and discuss the impact of the proposed control methods on the population of each species.
See, e.g., Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (“The
sweeping policy goals announced in § 101 of NEPA are thus realized through a set of ‘actionforcing’ procedures that require that agencies take a ‘hard look’ at environmental consequences,
and that provide for broad dissemination of relevant environmental information. Although these
procedures are almost certain to affect the agency’s substantive decision, . . . NEPA itself does
not mandate particular results, but simply prescribes the necessary process.”) (internal citations
and quotation marks omitted).3
The SEIS contains species-specific sections that discuss the likely impact of each
proposed control alternative (on- and off-airport, lethal and nonlethal methods) on affected
species’ population. See, e.g., APHIS_256-AHPIS_290 (analyzing effects by species of previous
program). Furthermore, SEIS’s discussion of each management alternative includes analysis of
the particular species targeted or most likely to be affected. For example, the off-airport lethal
take alternative is only directed at several large species (such as Canada geese and mute swans).
See APHIS_321-324. These analyses were species-specific and demonstrate that the forms of
3
Nor has FoA established that the MBTA or its regulations (or other protected statuses for
particular birds) by themselves require minimizing lethal actions against birds any more than the current program
does.
10
bird hazard management are tailored to the species in question. That is enough to constitute a
“hard look” under NEPA.4
I am also not persuaded that APHIS did not consider a range of reasonable
alternatives. While it is true that NEPA requires agencies to “[r]igorously explore and
objectively evaluate all reasonable alternatives,” 40 C.F.R. § 1502.14, the “range of alternatives
that must be discussed is a matter within an agency’s discretion,” Friends of the
Ompompanoosuc v. Federal Energy Regulatory Commission, 968 F.2d 1549, 1558 (2d Cir.
1992). Here, APHIS did consider a wide range of alternatives, including many nonlethal
methods. And, as defendants now point out, the revised BHRP does give a qualified priority to
nonlethal means. See APHIS_13.
I understand FoA’s concern that the BHRP does not prioritize nonlethal methods,
and I hope that APHIS and the PA can find tools to diminish the danger to planes without killing
so many birds. But ultimately, I am persuaded that APHIS was sufficiently thorough in its SEIS
to satisfy the requirements of NEPA and the APA.
E.
Merits of APA/MBTA Claim against FWS
FoA contends that FWS’s issuance of the 2013 and 2014 permits5 violated the
APA because FWS exceeded its authority under the Migratory Bird Treaty Act and relevant
regulations. I conclude that FoA’s arguments are without merit.
4
I also reject FoA’s argument that more specific information was required in order to show that the
revised BHRP was within APHIS’s legal power. The statutory grant of authority is broad, and permits the agency to
“conduct a program of wildlife services with respect to injurious animal species and take any action the Secretary
considers necessary in conducting the program.” 7 U.S.C. § 426. The SEIS adequately describes how the bird
species in question are “injurious,” since even small birds can present a risk to aircraft, and large ones present a
major risk. See, e.g., APHIS_436-37 (describing risks from birds under four pounds in size); see also 1994 EIS at
APHIS_1524-1525 (describing hazards from birds of many sizes).
5
Defendants note that the 2013 permit under which the snowy owls were killed, and which was the
initial subject of this suit, has since been superseded by a renewed permit. See DE 37 (providing notice of June 11,
11
The MBTA is the federal legislation implementing bilateral treaties made with
Canada, Mexico, Japan, and Russia (as the successor to the USSR), all concerning species of
migratory birds. The MBTA makes it illegal to kill, sell, capture, take, or perform a variety of
other activities interfering with migratory birds covered by those treaties “[u]nless and except as
permitted by regulations” promulgated under the provisions set out in the law. 16 U.S.C.
§ 703(a). As relevant here, the MBTA delegates authority to the Secretary of the Interior to
write those regulations. See id. § 704(a).
The implementing regulations for the MBTA provide two different ways for the
Secretary of the Interior to allow the taking of migratory birds: 50 C.F.R. § 21.41 provides
authority for the Secretary to issue depredation permits, and § 21.42 provides authority for the
issuance of depredation orders.
Here, it is undisputed that FWS has authorized emergency killing under both the
2013 and 2014 permits, and not under depredation orders. The 2013 permit’s section D
enumerates migratory birds allowed to be killed (with specific numbers by type), but its section
E then creates an emergency exception, as follows:
You are authorized in emergency situations only to take, trap, or
relocate any migratory birds, nests and eggs, including species that
are not listed in Condition D (except bald eagles, golden eagles, or
endangered or threatened species) when the migratory birds, nests,
or eggs are posing a direct threat to human safety. A direct threat to
human safety is one which involves a threat of serious bodily
injury or a risk to human life.
You must report any emergency take activity to your migratory
bird permit issuing office by FAXING to 413-253-8424 within 72
hours after the emergency take action. Your report must include
2014 renewal). However, it is undisputed that while the renewed permit is not identical to the original one, it still
authorizes the essential activities challenged in the original Complaint. Thus, the case is not moot.
12
the species and number of birds taken, method, and a complete
description of the circumstances warranting the emergency action.
FWS_1517 (emphases in original).
Although the 2014 permit preserves the emergency exception, it also substantially
increases the post-hoc reporting requirements. The first paragraphs are identical, but the
reporting requirements in the second paragraph are increased:
You must report any emergency take activity to your migratory
bird permit issuing office by FAXING to 413-253-8424 within 72
hours after the emergency take action. Your report must include
the species and number of birds taken, the method of take, and a
complete narrative description of the circumstances under which
you determined an emergency existed. In doing so, you shall
discuss species behaviors that created the hazard or risk being
addressed; location of the birds relative to the aircraft or airport
operations; duration of bird presence in the area where the
emergency existed; timing and amount of practical non-lethal
measures attempted prior to the lethal take, as well as results.
FWS_2171 (emphasis in original).
FoA contends that the structure of the regulations makes clear that this emergency
authorization in a depredation permit is improper; instead, FoA argues, emergency takes can
only be covered by depredation orders.
A depredation permit is generally “required before any person may take, possess,
or transport migratory birds for depredation control purposes.” Id. § 21.41(a). A permit may be
issued only after a party petitions the Secretary with an array of information, including
specifically “(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. § 21.41(b). The regulation also limits the
means by which birds may be killed, even under a permit, and limits the duration of permits to
one year. Id. § 21.41(c), (d).
13
By contrast, the Secretary may issue a depredation order “[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 . . . .” Id. § 21.42. That regulation requires “That shooting shall be limited to
such time as may be fixed by the Director on the basis of all circumstances involved” and, in
addition, that the order should be promptly revoked once there is no longer “a serious threat to
the area or areas involved.” Id. § 21.42(b). The plaintiff also places great importance on a final
subsection, which imposes the following condition on the Director of FWS’s authority to issue a
depredation order:
(d) That any order issued pursuant to this section shall not
authorize the killing of the designated species of depredating birds
contrary to any State laws or regulations. The order shall specify
that it is issued as an emergency measure designed to relieve
depredations only and shall not be construed as opening,
reopening, or extending any open hunting season contrary to any
regulations promulgated pursuant to section 3 of the Migratory
Bird Treaty Act.
Id. § 21.42(d).
As FoA points out, § 21.42 states that a depredation order “shall specify that it is
issued as an emergency measure designed to relieve depredations only,” but § 21.41 makes no
mention of “emergency.” FoA argues that this difference is deliberate, and that emergency
killing may be approved (if at all) only under FWS’s depredation order, not permit, authority.
I conclude that FoA reads too much into the language. Section 21.42’s use of
“emergency” to describe depredation orders does not rule out depredation permits that also
authorize what might be described as emergency action against birds. Indeed, even the use of
“emergency” within § 21.42 does not directly constrain FWS’s authority. The word is deployed
in a sentence describing how FWS’s order must be presented to the public (as a short-term
14
authorization, not as a general waiver of normal hunting season restrictions). FoA’s reading of
the two sections seems to require that any killing required by what could be described as an
emergency must be authorized by a separate depredation order. But that is too dramatic a
consequence to arise from the single use of the word “emergency,” and it is inconsistent with the
structure of the two regulations as a whole.6
Instead, the key question is whether the permit issued here complied with § 21.41,
the provision under which it was issued (and other provisions applicable to many types of
permits, such as 50 C.F.R. § 13.42). Nothing in the language of § 21.41 forbids FWS from
issuing a depredation permit that includes an emergency exception. As FoA points out,
§ 21.41(b) requires that an application for a permit must contain “(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.” But those conditions govern the application, not the permit itself (or the agency’s
discretion in issuing permits).
Only subsections (c) and (d) limit the agency’s authority in issuing permits.
Subsection (d) limits the maximum duration of a permit to one year. Subsection (c) states that
permittees may kill birds only if specifically authorized; limits the means by which birds may be
killed and the manner by which their bodies will be disposed of (and even then only “[u]nless
otherwise specifically authorized”); and states that only persons named in the permit may act as
6
In addition, despite the use of “emergency” in § 21.42, some actual depredation orders issued
under that section have durations far exceeding one year, the maximum authorized for depredation permits under
§ 21.41. See, e.g., 50 C.F.R. § 21.48 (depredation order effective in its current version on June 27, 2014 for doublecrested cormorants will expire automatically on June 30, 2019); Migratory Bird Permits; Regulations for DoubleCrested Cormorant Management, 68 Fed. Reg. 58022-01 (Oct. 8, 2003) (original authorization for same depredation
order).
15
agents of the permittee. None of this language suggests that a permit cannot authorize killing in
emergency circumstances.
FoA’s citation to Executive Order 13186, “Responsibilities of Federal Agencies
To Protect Migratory Birds,” 66 FR 3853 (January 10, 2001), does not change my analysis. That
order’s Section 5 clearly states that the order “is intended only to improve the internal
management of the executive branch and does not create any right or benefit, substantive or
procedural, separately enforceable at law or equity by a party against the United States, its
agencies or instrumentalities, its officers or employees, or any other person.” Other courts have
found that this language means what it says. See, e.g., Defenders of Wildlife v. Jackson, 791
F.Supp.2d 96, 120-21 (D.D.C. 2011) (holding Executive Order 13186, and citing D.C. Circuit
authority holding similar executive orders unenforceable in court based on similar language).
Likewise ineffective is plaintiff’s citation to 50 C.F.R. § 13.42, which applies to
many types of permits issued by FWS. That section states in full:
The authorizations on the face of a permit that set forth specific
times, dates, places, methods of taking or carrying out the
permitted activities, numbers and kinds of wildlife or plants,
location of activity, and associated activities that must be carried
out; describe certain circumscribed transactions; or otherwise
allow a specifically limited matter, are to be strictly interpreted and
will not be interpreted to permit similar or related matters outside
the scope of strict construction.
This language (which has only been cited by one federal court, see Loggerhead Turtle v. Cnty.
Council of Volusia Cnty., Fla., 148 F.3d 1231, 1243, 1246 (11th Cir. 1998)), restricts the
interpretation of permits. It is intended to bar a permit holder from engaging in behavior not
clearly authorized by a permit. But nowhere does the section place a limit on the specificity of
permits that FWS issues; instead, the section states that any authorizations that are specific must
be construed as such.
16
Despite my conclusion that FWS’s emergency permits did not exceed legal
authority, I do find the 2013 permit’s reporting requirements disturbingly vague. And I
understand why, as a policy matter, an emergency exception that is employed too casually – as
an attempt to evade the requirements of the permit itself – is not desirable. At the same time,
however, the 2014 permit’s increased reporting requirements (including that officials identify the
nonlethal measures they first attempted, and the circumstances of the emergency) diminish this
concern. Time will tell how those requirements are implemented. I am also mindful that there is
a practical limit on the ability to determine in advance what measures might be necessary to keep
the airport safe.
CONCLUSION
For the preceding reasons, the defendants’ motion to dismiss for lack of standing
is denied, and the defendants’ motion for summary judgment is granted.
So ordered.
John Gleeson, U.S.D.J.
Dated: October 3, 2014
Brooklyn, New York
17
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