Eagle on Alliance et al v. Jewell et al
Filing
64
OPINION AND ORDER granting 35 MOTION to Dismiss by Norfolk Airport Authority WITH PREJUDICE due to a lack of Article III standing; denying 41 MOTION to Dismiss by Kevin Shea, and Tom Vilsack. Signed by District Judge Henry C. Morgan, Jr on 9/4/2014 and filed on 9/8/2014. (rsim, )
IN THE UNITED STATES DISTRICT COURTj
11 C n
FOR THE EASTERN DISTRICT OF VIRGINIA
r ILfc U
Norfolk Division
EAGLE ON ALLIANCE, ET AL,
CLERK U.S. DISTRICT UUURT
NORFOLK. VA_
Plaintiffs,
v.
Civil Action No. 2:13cv371
JEWELL, ET AL,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants Tom Vilsack and Kevin Shea's
(collectively the "USDA Defendants") Motion to Dismiss, Doc. 41, and Defendant Norfolk
Airport Authority's ("NAA") Motion to Dismiss the Second Amended Complaint. Doc. 35. The
USDA Defendants seek dismissal under Rule 12(b)(1) on the grounds that Plaintiffs lack Article
III standing. See Doc. 42. NAA asserts three grounds for dismissal including lack of standing,
failure to state a claim, and failure to join a necessary party. See Doc. 36. The Court heard oral
argument on July 8, 2014 and took the matters under advisement.
After considering the instant motions, supporting and opposing memoranda, as well as
oral argument, the Court DENIES the USDA Defendants' Motion to Dismiss and GRANTS
NAA's Motion to Dismiss the Second Amended Complaint for the following reasons.
I.
BACKGROUND
This case centers on the United States Fish and Wildlife Service's ("FWS") decision to
grant the City of Norfolk ("City") a permit to remove the nests of eagles residing at the Norfolk
Botanical Garden ("NBG") and to perform continued "harassment" activities to prevent re-
1
nesting. Principally, Plaintiffs seek to set aside the current permit, a permanent injunction
against the issuance of future permits, and a declaratory judgment that FWS and USDA
Defendants have violated the Bald and Golden Eagle Protection Act ("Eagle Protection Act"), 16
U.S.C. §§ 668 et se£,, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et
seq„ the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470, et seo^, and the
Administrative Procedure Act ("APA"), 5 U.S.C. § 706. See 2d Am. Compl., Doc. 32 at 21-22.
A.
Factual Background1
Plaintiff Eagle On Alliance ("EOA") is a group of over 830 individuals from around the
world who enjoy observing, studying, and photographing eagles, including those residing in
NBG. Id. at f 8. Plaintiff Senechal is a resident of Norfolk who founded EOA after spending
many years watching, photographing, and enjoying the NBG eagles. Id. at ^ 9.
A complete list of defendants and their practical connection with this litigation is
important for the sake of clarity. Sally Jewell, the Secretary of the Department of the Interior, is
the head of FWS' parent agency. Dan Ashe and Valerie Slocumb are high-level employees of
FWS, the agency responsible for issuing eagle "take" permits. Tom Vilsack, the Secretary of the
United States Department of Agriculture ("USDA"), is the leader of the governmental agency
which oversees the Animal Plant and Health Inspection Services ("APHIS"). Kevin Shea is the
Administrator of APHIS, the agency responsible for Wildlife Services, the agency which carried
out the removal and harassment of eagles at NBG.
Finally, NAA, the operator of Norfolk
International Airport ("NIA"), is a geographic neighbor of NBG. Id at ffl| 10-15.
1 "In considering a motion to dismiss, [the Court] accept[s] as true all well-pleaded allegations and view[s] the
complaint in the light most favorable to the plaintiff." Venkatraman v. REI Svs.. Inc.. 417 F.3d 418, 420 (4th Cir.
2005) (citing Mvlan Labs.. Inc. v. Matkari. 7 F.3d 1130, 1134 (4th Cir.1993)). The Court cautions, however, that
the facts alleged by Plaintiff are recited here for the limited purpose of deciding the instant motions. The recited
facts are not factual findings upon which the parties may rely for any other issue in this proceeding.
The present dilemma began in 1938, when NBG and NIA were built adjacent to one
another. Id at ^| 38. Both properties are also adjacent to Lake Whitehurst, which provides a
steady source of food for birds in the region. Id Since 2003, a pair of eagles ("NBG Eagles")
has nested, lived in, and raised their young in NBG. Id. at %37. The NBG Eagles are also the
only publically viewable mated pair that resides in the Norfolk area. Id. at K41. In 2006, NBG's
administrators installed an "Eagle Cam" so that people around the world could view the NBG
Eagles' activities via the Internet. Id. at ^ 37.
Problems arose quickly however, as airplanes and eagles make poor neighbors. Since
2002, there have been at least four collisions between eagles and airplanes at NIA—with two of
the collisions involving eagles nested at NBG. Doc. 63 at Pis.' Supp. Ex. 1. Most notably, on
April 26, 2011, the female NBG Eagle was killed by an airplane as she enjoyed a fish on one of
NIA's runways.2 2d Am. Compl. at ^ 40.
In reaction, authorities at NIA contacted appropriate state and federal agencies, including
those represented by some of the Defendants, and met with them to address the on-going safety
risk (both to the "flying public" as well as the local eagle population) believed to be caused by
eagles nesting close to NIA. Doc. 24 at 5. The incident also prompted the USDA's Division of
Wildlife Services ("WS") to publish a Wildlife Hazard Assessment for August 2010- July 2011,
which characterized the potential for recurring "eagle strikes" at NIA as posing an "extremely
high" risk to aviation. Doc. 24 at 4-5. In addition, WS recommended that the eagles' nests at
NBG be removed as a "hazard mitigation measure." Id. at 5. Further investigations were then
2The male eagle has since re-mated and continues to nest in NBG with his new mate. Doc. 14, fflj 35-36.
3
conducted by various state and federal agencies, and several publicly and privately employed
experts were consulted regarding the risks involved.3 Doc. 24 at 16-17.
FWS issued permits to City in September of 2012 to remove eagle nests at NBG. Under
these initial permits, City employed the help of WS to remove as many as seven nests. 2d Am.
Compl. at ffl[ 42^14. In November 2013, FWS issued City a new permit that does not expire
until October 31, 2014. Id at ^ 37. The substance of this new permit grants City the right to
remove eagle nests and to disturb the NBG eagles through "harassment" techniques in order to
alleviate the "safety emergency" at NIA. Id at H5. Under this currently active permit, City has
removed an eighth nest, id at ^ 45, and, with the assistance of WS, has maintained a level of
harassment to prevent the NBG Eagles from re-nesting. Doc. 24-1 at Yi 15-21.
B.
Procedural History
On July 3, 2013, Plaintiffs filed a Complaint against Defendants Sally Jewell, Dan Ashe,
and Wendi Weber.
Doc. 1.
On October 2, 2013, the three original Defendants filed their
Answer. Doc. 10. On October 3, 2013, Plaintiffs filed an Amended Complaint, clarifying their
prior claims and adding Tom Vilsack and Kevin Shea as defendants. Doc. 12. On October 21,
2013, Defendants filed their Answer to the Amended Complaint. Doc. 14.
On October 25, 2013, Plaintiffs filed a Motion for a Temporary Restraining Order, Doc.
15, and/or a Preliminary Injunction, Doc. 18, and filed Amended Memoranda in Support, Docs.
22-23, on October 28, 2013. The Court held a hearing on October 29, 2013, and ruled from the
bench finding that Plaintiffs failed to meet their burden for injunctive relief. Doc. 25. The Court
issued its opinion and order explaining its reasons for denying Plaintiff preliminary relief on
November 22, 2013. Doc. 26.
3NIA authorities consulted Sarah Nystrom, FWS' Regional Bald and Golden Eagle Coordinator; an eagle biologist
from the Center for Conservation at the College of William and Mary; and Dr. Scott C. Barras, a USDA employee
who also serves WS (as a Supervisory Wildlife Biologist); and the State Director for Virginia. See Doc. 24.
4
On December 19, 2013, Plaintiff filed a Motion to Amend their Amended Complaint to
Challenge the November 2013 permit issued by FWS and to add NAA as a defendant.4 Doc. 27.
The Court granted this motion on January 14, 2014. Doc. 31.
On February 6, 2014, NAA filed a Motion to Dismiss the Second Amended Complaint.
Doc. 35.
On February 16, the USDA Defendants filed an Answer to Second Amended
Complaint, Doc. 39, followed by a Motion to Dismiss on February 20. Doc. 41. On February
21, Plaintiffs filed their Opposition to NAA's Motion to Dismiss. Doc. 41. On February 27,
NAA filed its Reply, but then filed a Motion to Correct its Reply on March 3, 2014. Doc. 47.
The Court granted this Motion on March 4, Doc. 49, and NAA submitted its Corrected Reply
that same day. Doc. 50. On March 6, Plaintiffs filed their Opposition to the USDA Defendants'
Motion to Dismiss. Doc. 51. On March 13, the USDA Defendants filed their Reply to Plaintiffs'
Response in Opposition to the Motion to Dismiss for Lack of Standing. Doc. 53.
II.
STANDARD OF REVIEW
The elements of federal jurisdiction are not "mere pleading requirements but rather an
indispensable part of plaintiffs case." Luian v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);
see also Pinev Run Pres. Ass'n v. Cntv. Comm'rs of Carroll Cntv,, MP. 268 F.3d 255, 263 (4th
Cir. 2001). Accordingly, "each element must be supported . . . with the manner and degree of
evidence required at the successive stages of the litigation." Luian. 504 U.S. at 561. Therefore,
to establish proper jurisdiction on a motion to dismiss, a plaintiff "need only plausibly allege" the
necessary supporting facts. Liberty Univ. v. Lew, 733 F.3d 72, 90 (4th Cir. 2013).
Federal district courts are courts of limited subject matter jurisdiction. United States ex
rel. Vuvvuru v. Jadhav. 555 F.3d 337, 347 (4th Cir. 2009) (citing Exxon Mobile Corp. v.
Allapattah Servs.. Inc., 545 U.S. 546, 552 (2005)). Accordingly, this Court must determine first
4Original Defendant Wendi Weber was not included in Plaintiffs' Second Amended Complaint.
5
whether it has jurisdiction over the claims at issue. See Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 94-95 (1998) (quoting Manfield. C. & L.M.R. Co. v. Swan. Ill U.S. 379, 382
(1884)) ("The requirement that jurisdiction be established as a threshold matter 'spring[s] from
the nature and limits of the judicial power of the United States' and is 'inflexible and without
exception.'"). "The objection that a federal court lacks subject-matter jurisdiction . . . may be
raised by a party, or by a court on its own initiative, at any stage in the litigation . . . ." Arbaugh
v. Y & H Corp.. 546 U.S. 500 (2006) (citing Fed. R. Civ. P. 12(b)(1)).
The United States Constitution restricts federal courts to deciding only actual cases and
controversies. U.S. Const, art. Ill, § 2. Among "[t]he several doctrines that have grown up to
elaborate that requirement," the one "that requires a litigant to have 'standing' to invoke the
power of a federal court is perhaps the most important." Allen v. Wright, 468 U.S. 737, 750
(1984). The basic purpose of the standing doctrine is to ensure that the plaintiff has a sufficient
personal stake in the outcome of a dispute to render judicial resolution of it appropriate in a
society that takes seriously both "the idea of separation of powers" and, more fundamentally, the
system of democratic self-government that such separation serves. Id at 750-52. The doctrine
encompasses both prudential, "judicially self-imposed limits on the exercise of federal
jurisdiction," and "a core component derived directly from the Constitution." Id at 751; see also
Luian. 504 U.S. at 560; Friends for Ferrell Parkway. LLC v. Stasko. 282 F.3d 315, 319-20 (4th
Cir. 2002).
"On a motion to dismiss pursuant to Rule 12(b)(1), the party asserting jurisdiction has the
burden of proving subject matter jurisdiction." Balzer & Assoc. Inc. v. Union Bank & Trust.
3:09cv273, 2009 WL 1675707, at *2 (E.D. Va. June 15, 2009) (citing Richmond. Fredericksburg
& Potomac R.R. v. United States. 945 F.2d 764, 768 (4th Cir. 1991)). That party must establish
three elements to satisfy the constitutional requirements for standing. "First, the plaintiff must
have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete
and particularized and (b) actual or imminent, not conjectural or hypothetical." Luian. 504 U.S.
at 560 (internal quotation marks and citations omitted). Second, the plaintiff must show that the
injury is '"fairly ... trace[able] to the challenged action of the defendant." Id (quoting Simon v.
Eastern Kv. Welfare Rights Organization. 426 U.S. 26, 41-42 (1976)). Third, "it must be likely .
. . that the injury will be redressed by a favorable decision." Luian, 504 U.S. at 556 (internal
quotation marks and citation omitted).
"An injury sufficient to meet the . . . elements of the standing inquiry must result from the
actions of the [defendant], not from the actions of a third party." Mirant Potomac River. LLC v.
EPA, 577 F.3d 223, 226 (4th Cir. 2009); see also Frank Krasner Enters. Ltd. v. Montgomery
Cntv., 401 F.3d 230, 234-35 (4th Cir. 2005). Additionally, there is no redressability when, even
if the plaintiff were to prevail, a party not before the court would still be free to engage in the
offending action. See, e.g.. Levine v. Vilsack. 587 F.3d 986, 991-95 (9th Cir. 2009) (holding
that plaintiffs lack standing where redressability depends on third parties altering their behavior);
Klamath Water Users Ass'n v. FERC. 534 F.3d 735, 739-41 (D.C. Cir. 2008) (finding no
redressability where petitioner's relief relied on actions by third parties not before the court and
petitioner failed to show that a favorable decision would significantly increase the likelihood of
relief).
III.
A.
DISCUSSION
USDA Defendants' Motion to Dismiss
The USDA Defendants argue that Plaintiffs' claims against Secretary Vilsack and
Administrator Shea should be dismissed for lack of standing under Rule 12(b)(1). In support,
they note that USDA, APHIS, and WS did not issue or receive the permit in question. Doc. 36 at
1-2. Furthermore, they claim that Paragraph N of the permit authorizes City to utilize third party
services other than WS to conduct the challenged actions.3 Doc. 42 at 7. Accordingly, the
USDA Defendants assert that since City could easily contract with an entity other than WS,
Plaintiffs cannot show that their alleged injuries, the diminution of aesthetic, photographic, and
recreational interests, are likely to be redressed by a favorable judgment. Doc. 42 at 8.
Plaintiffs' Response refers to Paragraph B of the November 2013 permit which states that
the permit's "validity is also conditioned upon strict observance of all applicable foreign, state,
local, tribal or other federal law."
Doc. 51 at 7. Plaintiffs argument is that, assuming WS
violated federal law as alleged in the Second Amended Complaint, Paragraph B requires that the
permit be invalidated and that this invalidation is sufficient to satisfy the redressability
requirement for the purposes of standing.
The Court finds Plaintiffs' argument most persuasive at this stage of the litigation. The
USDA Defendants' argument based on Paragraph N is only viable if the permit remains valid. If
the permit is invalidated, then the right to delegate duties under that permit is irrelevant.
Plaintiffs' Second Amended Complaint requests that this Court declare the "federal Defendants,"
a group that includes the USDA Defendants, in violation offour federal laws.6 2d Am. Compl.
at 21.
According to Paragraph B, the validity of the permit is "conditioned upon strict
observance of all applicable . . . federal law." Doc. 51 at ex. 6 (emphasis added). Additionally,
Paragraph 0 clearly states that City is "responsible for ensuring that [its subpermittees] adhere to
5TheCity acknowledged thatthird parties could exercise authority under the permit ina November 19, 2013 letter
delegating authority to WS to act under the permit. The November 19, 2013 letter further certifies that WS advised
City of the possibility that there are private sector service providers available to provide the wildlife management
services that the City sought from WS. Doc 62, ex. 2.
6 In Plaintiffs' prayer for relief (2d Am. Compl., at 1173(1)) declaratory judgment is sought against "federal
defendants" on all four laws mentioned above; however, Claim I (]d at ffi| 67-71) only alleges violation of the Eagle
Protection Act by FWS. This discrepancy is unimportant at this time.
8
the terms of the permit. Id Therefore, if the Court finds the USDA Defendants in violation of
any of these laws, City, the permit holder, would be responsible under Paragraph O for that
violation, and Paragraph B would operate automatically to invalidate the permit.
The cases relied on by the USDA Defendants are clearly distinguishable from those facts
currently at hand. For example, in Goat Ranchers of Or. v. Williams, 379 Fd. App'x 662 (9th
Cir. 2010), the Ninth Circuit found no redressability because the state government was free to
continue taking cougars even if the federal agency was barred from doing so. Here, the opposite
is true. If the permit is invalidated, than neither WS nor City will be allowed to continue taking
eagles without the issuance of a new permit. Similar logic, if not identical, was employed in
deciding the other cases cited on this point by the USDA Defendants. See Fund for Animals v.
Babbitt, 2 F. Supp. 2d 570, 575 (D. Vt. 1997) (finding no redressability where "the state is
authorized to continue, and will continue, to conduct the moose hunt"); Americanus v. Wildlife
Services, No. CV-03-1606-HU, 2004 WL 2127182, at *5-6 (D. Ore. Sept. 23, 2004) (finding no
redressability because Oregon law allows landowners to kill depredating bears at will).
Neither the obvious importance of preventing eagle strikes at NIA, nor the seemingly
high likelihood that City would be able to obtain a new permit in the future, is relevant to the
current discussion. See Defenders of Wildlife v. N. Carolina Dep't of Transp., No. 13-2215,
2014 WL 3844086, at *1 (4th Cir. Aug. 6, 2014) ("we do not decide whether we agree with
Defendants' policy choices or project preferences [but instead] must determine whether
Defendants have complied with the law in reaching their decisions"). Plaintiffs' claim to be able
to invalidate the current permit is a sufficiently plausible allegation to establish redressability and
thereby satisfy Plaintiffs' standing as to the USDA Defendants at this early stage of the litigation.
See Luian, 504 U.S. at 561. Therefore, the USDA Defendants' Motion to Dismiss is DENIED.
B.
NAA's Motion to Dismiss the Second Amended Complaint
As a threshold matter, this Court must first address NAA's assertion that Plaintiffs do not
have sufficient Article III standing for this Court to have jurisdiction over NAA in this matter.
NAA claims, and this Court agrees, that Plaintiffs' allegations fail here because they do not show
plausible facts sufficient to support a finding that it is likely Plaintiffs' "injury will be redressed
by a favorable decision." Id. at 556.
The only claim for relief brought against NAA seeks an injunction preventing NAA from
"engaging in, implementing, or funding any of the activities authorized by the permit." 2d Am.
Compl. at 22. The parties appear to agree that, factually speaking, this claim applies only to
financial support NAA has provided to City towards the execution of the permit. See id at %15;
Doc. 50 at 1. Accordingly, the only question this Court must address on this issue is whether
enjoining NAA from providing financial assistance to City is likely to redress Plaintiffs' injury.
See Luian. 504 U.S. at 556.
In defending this exact issue, Plaintiffs puts forth three allegations. First, that NAA "is
funding the activities they seek to end." Doc. 43 at 6. Second, that Plaintiffs seek an order
prohibiting NAA "from continuing to fund such activities." Id Third and finally, that "the
permit requires the City to work with NAA to conduct harassment activities." Id
The first two facts listed above do not establish any likelihood that a judgment against
NAA would redress Plaintiffs' injury. The mere assertion that NAA contributes financially to the
execution of the permit does not plausibly make it likely that were that funding enjoined, City
would cease removal activities under the permit. This Court finds it just as likely, perhaps even
far more so, that City would simply find funding to perform the permitted removal activities
from another source due to the significant pressure to act from state and federal agencies. See
10
Doc. 63 at Pis.' Supp. Ex. 1. Plaintiff has pointed to very little in the administrative record to
indicate that City was completely reliant on NAA funding.7 Therefore, the Court FINDS that
Plaintiffs have not met their burden to show a plausible likelihood of redressability.
Additionally, the second element of standing is also in doubt here. This element requires
a plaintiff to demonstrate that its injuries are fairly traceable to the challenged conduct of the
defendants.
Luian, 504 U.S. at 560. The "fairly traceable" standard is "not equivalent to a
requirement of tort causation." Natural Res. Def. Council, Inc. v. Watkins, 954 F.2d 974, 980
n.7 (4th Cir. 1992) (quoting Pub. Interest Research Group, Inc. v. Powell Duffryn Terminals Inc.,
913 F.2d 64, 72 (3d Cir. 1990)); see also Vermont Agency of Natural Res, v. United States ex rel.
Stevens, 529 U.S. 765, 771 (2000) (holding that even harms flowing indirectly from the action in
question can be said to be "fairly traceable" for standing purposes). Even considering this broad
standard however, it is questionable whether NAA funding the eagle dispersal activities is
sufficient to meet the fairly traceable test for the same reasons undermining redressability,
namely that it is likely the dispersal activities would continue without NAA funding.
Alternatively, Plaintiffs argue that regardless of the Court's decision on Article III
standing, NAA's motion should not be granted because NAA is a necessary party. Doc. 43 at 6.
In the same breath however, Plaintiffs admit that this argument is not persuasive.
Id. at 5
("Plaintiffs do not believe that [NAA] is necessary to obtain effective relief in this case"). The
Court agrees, and finds that Plaintiffs have failed to show sufficient facts to satisfy any of the
requirements of Federal Rule of Civil Procedure 19. NAA is not a necessary party to this case.
7The only evidence presented from the administrative record of City's refusal to proceed without NAA funding is
found in an email exchange between Becky Gwynn of VA Dept. of Game and Inland Fisheries and Sherry Morgan
of FWS. Doc. 63 at Pis.' Supp. Ex. 19. Ms. Gwynn indicates that she spoke with an Assistant City Manager and
that "[s]he did not seem particularly appreciative of our advanced notice; her primary question had to do with who
was going to pay for the proposed work." The Court does not find this singular reference to be persuasive that City
was unlikely to proceed with the recommended eagle removal activities.
11
Accordingly, this Court GRANTS NAA's Motion to Dismiss WITH PREJUDICE due
to a lack of Article III standing.
NAA also sought to dismiss Plaintiffs' Second Amended
Complaint on the grounds that Plaintiffs failed to state a claim upon which relief can be granted
and for failure to join City as a necessary party. However, having dismissed NAA from this case
on jurisdictional grounds, it is neither necessary nor appropriate for this Court to opine on the
merits of NAA's other proposed bases for dismissal.
IV.
CONCLUSION
For the reasons stated above, the Court DENIES the USDA Defendants' Motion to
Dismiss and GRANTS NAA's Motion to Dismiss the Second Amended Complaint WITH
PREJUDICE.
The Clerk is REQUESTED to send a copy of this Order to all counsel of record.
It is so ORDERED
/s/
Henry Coke Morgan, Jr.
Senior United States District Jud
HENRY COKE MORGAN, JR.
SENIOR UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
Date: September
V*:
2014
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