GESELL, District Judge.
Plaintiff claims that regulations of the Department of the Interior governing the hours during which sport hunting of migratory game birds may occur violate a number of treaties, the Migratory Bird Treaty Act, 16 U.S.C. § 704, the Endangered Species Act of 1973, 16 U.S.C. §§ 1531, et seq., and the Administrative Procedure Act, 5 U.S.C. § 706. The parties have filed cross-motions for summary judgment and the issues have been briefed and argued.
Pursuant to the Migratory Bird Treaty Act, the Fish and Wildlife Service, acting for the Secretary of the Interior, annually issues regulations setting the conditions under which certain migratory birds may be hunted. 16 U.S.C. § 704. Among the conditions imposed are the hours during the day when game shooting is permitted. For some years now the Service has permitted shooting from one-half hour before sunrise until sunset. See 50 CFR 20, as amended. It permitted game shooting of certain species during these hours for the 1976-77 hunting season, and it is this decision that is under immediate attack here.
Under the Migratory Bird Treaty Act the Secretary must implement the migratory bird treaties and has determined that his regulations should "limit the taking of protected species where there is a reasonable possibility of hunter identification error between game and protected species." 41 Fed.Reg. 9177 (1973). In addition, the Endangered Species Act of 1973 prohibits the hunting of endangered species, 16 U.S.C. § 1538(a)(1)(B), and requires the Secretary of the Interior to act to ensure the conservation of protected species.
Shooting of endangered species during the hunting hours is prohibited. Plaintiff contends, however, that the shooting hour regulations violate the Secretary's duties under the above acts, submitting numerous well-prepared affidavits indicating that because visibility is low one-half hour before sunrise and one-half hour before sunset, protected species cannot be readily distinguished from game species. Thus they assert that regulations which allow shooting at these times do not protect threatened and endangered species as required by law. The defendants have countered with some affidavits indicating that visibility during the contested hours is not so impaired that misidentification is likely to occur and that, in any case, such hours are required to provide adequate opportunities for game hunters.
This action challenges an administrative decision made under the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553. The scope of review is set by that Act, 5 U.S.C. § 706, and it is therefore necessary to examine the record of the agency proceedings on which the challenged regulation is based. In so doing it appears that when proposed regulations were published permitting shooting from one-half hour before sunrise until sunset, 41 Fed.Reg. 9177-82 (1973), plaintiff and other organizations and individuals protested, raising the issue of hunter misidentification of protected species. Neither plaintiff nor defendants presented any data which would indicate how many misidentifications occur during the contested hours compared with those that occur during full daylight. The administrative record contained no studies of the effects on protected species of early morning and late afternoon shooting, nor studies on the amount of light necessary to make the identifications needed to distinguish between species. The administrative record is virtually barren of any information regarding the impact of the contested shooting hours on birds that should not be taken.
The Fish and Wildlife Service contends that it was not required to carry out any such studies or to create a more complete administrative record. Its position is that the Endangered Species Act only requires that the regulations "do not jeopardize the continued existence of these [protected] species." Based on evidence that the most important factor affecting the population of a given species is the quality of its habitat, the Service concluded that it was unlikely that a minor alteration in shooting hours would jeopardize a species.
The Service has misinterpreted the Endangered Species Act of 1973. The Act requires that
Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. 16 U.S.C. § 1533(d).