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HUMANE SOCY. OF THE UNITED STATES v. WATT

November 29, 1982

THE HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs,
v.
JAMES G. WATT, et al., Defendants



The opinion of the court was delivered by: GREEN

 In this action, plaintiffs, an individual and two organizations, the Humane Society of the United States and the Maine Audubon Society, challenge the decision of the Department of the Interior, through the Fish and Wildlife Service (the Service), to permit sport hunting of black ducks during the 1982-83 hunting season. The Service issued the hunting regulations in question pursuant to the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703-712, and, as relevant here, the Convention on the Protection of Migratory Birds (The Canadian Treaty), concluded between the United States and Great Britain (for Canada) on August 16, 1916, 39 Stat. 1702, T.I.A.S. No. 628. Black ducks are migratory waterfowl within the meaning of the MBTA and the Canadian Treaty. In accordance with the MBTA, the Service annually issues "frameworks" within which the several states may authorize hunting of migratory waterfowl within their borders, with any further restrictions as to season length or daily take of birds (bag limits) as they desire to impose. No hunting of migratory waterfowl may take place unless permitted by the Service. Plaintiffs seek to have the Service's 1982-83 hunting regulations for black ducks declared unlawful, arguing that the MBTA prohibits the Service from allowing any hunting of a species of birds to continue when it is evident that the population of the species is declining and that the Service has failed to satisfy the requirements of section 102(2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2) (C), and regulations promulgated thereunder, in that no adequate environmental impact statement preceded the issuance of the hunting rules at issue here. Following this Court's denial of plaintiffs' application for a temporary restraining order on September 28, 1982 (memorialized in a written order issued the following day) and expedited briefing, this case was tried to the Court on October 26 and 27, 1982. *fn1" Upon consideration of the arguments of counsel for the parties and amici curiae, the testimony adduced at trial, and the record in this case (including the administrative record), and for the reasons which follow, the Court denies the relief sought by plaintiffs and enters judgment in favor of defendants. The following constitutes the Court's findings of fact and conclusions of law.

 Since 1955 there has been a sharp decline in the population of black ducks. As a result, since the late 1950s there has been substantial concern and debate about the species' situation. In consideration of the possibility that this decline could have been linked to the liberal hunting regulations then in effect (which, depending upon the year, established a bag limit of four black ducks and a 60- or 70-day season), in 1959 the Service imposed regulations sharply reducing the season length and bag limit. These reductions were altered from time to time over the years. They were the most restrictive in 1968, when a season of 40 days and a bag limit of two black ducks were prescribed. The 1982 regulations, at issue here, allow a 50-day season and a one-or two-duck bag limit.

 The rulemaking at issue contains the last annual stabilized rules for black duck hunting. In its public hearings and final rules this year, the Service announced that it intended to further restrict black duck hunting during the 1983-84 federal migratory bird hunting season. 47 Fed. Reg. 41254 (Sept. 17, 1982). The Service stated that it would prepare an environmental assessment on the proposal and try to develop with the Canadian and state governments a coordinated plan for such a reduction in harvest, but that it would go ahead with appropriate action next year if their concurrence and cooperation were not forthcoming.

 The 1975 EIS concerned the proposal of the Department of the Interior to continue issuing annual regulations governing the sport hunting of migratory waterfowl so as to permit "levels of harvest compatible with perpetuation of these migratory bird resources." EIS, at 1. This report considered factors affecting the population of such birds, including hunting and habitat conditions. The report cast doubt on the utility of winter inventories as a means of accurately estimating the annual black duck population but noted that such surveys were useful in discovering population trends. The winter inventory involves direct visual observation of birds from low-flying planes. Winter inventory data for 1955 through 1974 revealed a downward trend in black duck population. The EIS also discussed population data derived from banding of birds during the winter and the recovery of these bands by hunters. This data showed that the harvest rate for black ducks remained high despite very restrictive bag limits. The authors of the EIS speculated that hunting might have been depressing the population, but also noted that, in contrast, recovery rates from winter bandings (a measure of hunting mortality, discussed infra) had remained fairly constant over 20 years. Further analysis of the relationship between hunting and survival in other ducks cited conflicting results of several studies, as well as a preliminary finding of compensatory mortality in mallards, i.e., that natural mortality is higher in years when the rate of harvest is low (to compensate for decreased hunting mortality) and vice versa. The report concluded that further research was necessary to define more clearly the factors influencing the status of the black duck population.

 From the time of the Black Duck Symposium, convened in 1968 to discuss the status of the black duck population, until the mid-1970s, biologists and waterfowl managers, including those in the Service, had based their assumptions about the black duck on studies which indicated a link between hunting and survival rates. A comprehensive five-year study published by Anderson and Burnham, two Service employees, in 1976 revealed that the studies previously relied upon had been based on a faulty statistical analytic technique which incorrectly skewed their results toward establishing a link between hunting and survival. No other statistical analysis had confirmed the existence of such a link. Anderson and Burnham also concluded that there is a harvest rate threshold level above which hunting mortality becomes additive to total mortality and below which hunting takes birds which would otherwise die of other causes ("compensation").

 The publication of the results of this study was followed by the 1976 EA, which discussed the program of stabilized regulations for black duck hunting that evolved from the EIS. The 1976 EA disclosed the Service's proposal to continue black duck hunting for four years at "optimum levels of recreational hunting consistent with the maintenance of the resource base," and to commence an intensive bird-banding program to establish a data base on these population characteristics against which later regulatory change could be measured: rates of survival (the population of a banded sample that survives harvest the following year), recovery (the proportion of a banded sample which is recovered from downed ducks by hunters and others in the field), and harvest (the percentage of the population which is harvested, as derived from the recovery rate and the estimated proportion of recovered bands actually reported). 1976 EA at 1. This report noted the effects of the program on the environment, stating that "individual birds will be removed from the population, but the integrity of the resource base will be maintained." Id. It also noted that allowing hunting to continue would make certain that "critically needed" survival and harvest rate data could be obtained, through the winter banding program and reward bird study. Id. This program also announced research on black duck breeding and wintering grounds. The 1976 EA disclosed that the black duck had been surpassed by the wood duck as the primary breeding duck of the eastern United States; although the black duck ranked first in the eastern Canada duck harvest, it ranked third in the Atlantic Flyway, behind the mallard and wood duck. Id. at 9-10. It noted that breeding and wintering populations of mallards and wood ducks had increased greatly in the Atlantic Flyway, id. at 3, and that since the 1950's mallards had replaced black ducks as the principal breeding species in western Ontario and eastern Manitoba. This change was attributed to mallard release programs, land use changes from forest habitat to agricultural lands (which mallards prefer), and the increase of beaver flowages (which may have made previously remote habitat accessible to mallards). Id. The report noted that black ducks are asocial by nature and have a widely dispersed breeding range, although they do tend to congregate in offshore areas during the winter. Id. at 7. The eastward extension of the mallard was said to have brought it into association with the black duck, leading to observed hybridization (interbreeding), although no "substantial data" were available to evaluate the consequences of this process. Id. at 7.

 The 1976 EA discussed the population status of the black duck, concluding that it was not practical through direct aerial or ground observation (the method employed in the winter survey) to count the breeding population, but that indirect methods (statistical analysis of banding and harvest data) had shown that the pre-season population was less in 1976 than it was in the 1950s, when the estimate was 3.7 million birds. Id. at 7; EIS at 44. The 1976 EA noted a steady downward trend of about two percent a year evidenced by the Flyway-wide winter surveys in both the Mississippi and Atlantic Flyways, 1976 EA at 7-8, although no trend was indicated for the Northeast Region of the United States. It concluded that a significant reduction has occurred in wintering black duck populations. Id. at 8.

 The 1976 EA chronicled the changes in hunting regulations for black ducks since 1953 and corresponding trends in the United States and Canadian harvest over the period. It noted that the Canadian proportion of the continental harvest of black ducks had risen from 35 percent in the period 1952-62 to 46.2 percent in 1975. An increase in the number of actual hunters in the eastern flyways was explained as a partial reason for an increase in the black duck harvest under restrictive regulations since 1964, and was said to more than compensate for then-reduced season lengths and bag limits.

 The 1976 EA concluded that the effect, if any, of increased harvest rates on black duck survival rates had not been determined. It reported that, despite data gaps, indirect estimates of the survival rates of the closely related black duck and mallard indicate that they probably survive at about the same rate. However, it noted lower survival rates for immature male and female black ducks than for mallard immatures, stating: "it is possible that gunning pressure is too great on immature birds in [certain major data-retrieval] areas." Id. at 12.

 The stabilized regulation program was in effect from 1976 until 1980. Between 1978 and 1980, and as part of the stabilized regulations program, the Service conducted a "reward-band" study, involving an intensive banding effort, to estimate band reporting rates on black ducks, operating from the assumption that not all bands from shot and retrieved birds are reported by hunters. Record 9:C-1, at 2. In 1980, stabilized hunting rules were extended to all waterfowl, including black ducks, for five years, although the Service announced that species of special concern, such as black ducks, would be closely monitored annually. 1980 EA at 3. An important impetus for extending the program was the 1979 agreement by Canada to participate in a joint stabilized regulation program designed partially to facilitate research on a continent-wide basis. Additionally, the reward band study was continued through 1980 because the pre-season banding effort had yielded insufficient data. 1982 EA Supplement, at 2. During the period 1976-82, the Service sponsored research by its employee Dr. Warren W. Blandin, and others, into the implications of banding data collected through 1976 for the role of hunting and hunting regulations in survival of various black duck population units, the relation of hunting mortality to total annual mortality, and other relationships. 1982 EA Supplement, at 3.

 As reported in Dr. Blandin's doctoral dissertation (Record 7:K-13), those studies yielded the following conclusions:

 
1. An indirect population estimate for the period 1971-76 agreed closely with one made for the period 1967-70 and indicated a stable average annual level of 2.7 million birds in the fall migration, as compared with a decline demonstrated in the winter inventory.
 
2. Hunting accounts for a significant proportion (57 percent of adult males; 47 percent of adult females; 65 percent of immatures) of total annual mortality of black ducks, causing an average of 16.5 percent more of total mortality in young black ducks than in adults. Blandin concluded that this suggested that hunting may be of significance to the survival of young black ducks in the periods and locations from which the data was derived.
 
3. Tests of periods of liberal versus restrictive hunting rules did not demonstrate that hunting mortality was additive to natural mortality.
 
4. No correlation was demonstrated between the size of any annual harvest and the size of the immediately following winter inventory.
 
5. Using independent pre-season recovery rates and winter survival estimates based upon banding data, it was found in adult males only that survival rates decreased when recovery rates increased. Dr. Blandin testified that those high recovery rates were affected by long seasons (60-70 days) in the mid-to-late 1950s, when black ducks were more numerous.

 Much of the debate throughout this case has centered on population estimates as indicators of the health of the black duck species. Plaintiffs and defendants have both relied on the two primary methods of estimating black duck population size: indirect estimates based on banding and harvest data and winter inventories by aerial and ground observations, conducted in the same locales each year. Indirect estimates, because they are based on statistical analysis of banding and harvest data, provide a method by which margin of error can be calculated, although such calculation has not yet been done. Winter survey estimates, although useful at discerning trends, cannot reliably be used as an estimation of total annual population, because they lack a statistical framework by which individual observation can be tested. Indeed, since black ducks habituate wooded areas and are secretive, therefore being difficult to sight, the winter survey results are grossly estimated to count only one-third to one-fifth of the total population. Moreover, they are (almost by definition) not useful in predicting the birds' late summer or fall population, inasmuch as both regeneration (breeding) and mortality due to hunting are seasonal.

 Because of the unreliability of winter inventory data for determining annual population, the Service properly did not limit its consideration to such information but also included the indirectly-derived data in its exploration of the black duck's situation.

 The results of the two types of estimates often have been inconsistent. While the winter inventory index has dropped an average of 1.6 percent per year over the period 1962-82, banding and harvest data showed an average annual wintering population of 1.4 million black ducks for the 1967-70 period and 1.5 million for the 1971-76 period. Fall flight estimates, also based on banding and harvest data, indicate that the number of black ducks which survive all forms of mortality to enter the fall flight has remained stable since 1967 at about 2.7 to 2.9 million ducks.

 In any case, the Service has considered both types of estimates in its decision-making process, mindful of their limitations. Although the Service has concluded that the population of black ducks has been declining, the contradictory data has left experts in dispute as to the gravity of the problem and the extent to which various factors are responsible.

 Notice of the Service's proposal to establish hunting regulations for black ducks in the 1982 season that would be the same as those for the previous season, was published in 47 Fed. Reg. 16718, 16723-24 (Apr. 19, 1982). The Service stated its intention not to change the regulations pending the receipt of information from banding as well as other sources, and the completion of the Black Duck Management Plan (a joint project of the Service, the Canadian Wildlife Service, and the Atlantic Flyway Council). 47 Fed. Reg. at 16724. The Service similarly proposed to make no change in regulations governing certain other types of waterfowl. Public hearings on the proposed regulations were held by the Service on August 3, 1982. Representatives of plaintiff Humane Society, as well as other interested parties, attended and presented their views. See Record 2:F-3 (transcript of hearing). At that hearing, the Service reached these conclusions:

 
1. Nothing in the 1982 fall flight forecast justified a departure from the previously ...

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