program of harvest restrictions based on its assessment of what actions are necessary." 47 Fed. Reg. at 41254.
As a result, what happens this year notwithstanding, hunting of black ducks will be restricted next year. Moreover, for this year, these states within the Atlantic Flyway independently have restricted black duck hunting below the federal levels: Maine, Massachusetts, Rhode Island, and Vermont.
Ample documentation of the population and status of the black duck over the past twenty-seven years was presented to the agency during the administrative process by various interested parties including plaintiffs, representing diverse viewpoints. Upon consideration of the nine volume administrative record before the Court, it cannot be said at this juncture that there is evidence of such deficiencies within the agency's procedure or record which would reflect that plaintiffs are likely to prevail on their argument that the rulemaking was arbitrary, and capricious or not in accordance with law. The information within that administrative record does not project essentially that a crisis is imminent for survival of the black duck. Moreover, even assuming for the sake of argument as true plaintiffs' estimates of a population decline of four to six percent over the next year (which defendants contest) and considering those estimates in light of other dangers to the black duck including encroachment by mallards, the Court is not convinced that the species would be unable to repair itself in subsequent years.
In concluding that plaintiffs have not made the requisite showing of irreparable harm, the Court relies in part upon the commitment of the FWS, as expressed in the Federal Register, to issue appropriate hunting restrictions for the 1983-84 season. This conclusion is bolstered by the voluntary and independent actions of the several state wildlife agencies to reduce hunting in those states this year.
As to the other factors to be considered at this time, including public interest and impact on others, there is no doubt that the issuance of injunctive relief would have a substantial, immediate and negative effect upon hunters, who would be deprived of an important portion of their anticipated season of sport, as well as the FWS and state wildlife agencies, which entities plaintiffs asked to be required to embark upon a massive publication effort to inform the public of a last minute alteration of their previously established hunting schedules.
Having considered the record of this case, the briefs filed and arguments raised in open court, together with authorities cited therein, under the standards of Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc. and Virginia Petroleum Jobbers Association v. F.P.C., the Court is compelled to deny the interim relief sought by plaintiffs. Accordingly, it is, by the Court, this 28th day of September, 1982,
ORDERED, that plaintiffs' application for a temporary restraining order shall be and hereby is denied.
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