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NATIONAL AUDUBON SOCY. v. HESTER

February 3, 1986

NATIONAL AUDUBON SOCIETY, Plaintiff,
v.
F. EUGENE HESTER, et al., Defendants



The opinion of the court was delivered by: PARKER

 Barrington D. Parker, Senior District Judge

 In this proceeding plaintiff National Audubon Society ("Audubon" or "NAS") seeks to enjoin the United States Fish and Wildlife Service ("FWS") from capturing and removing from the wild all the remaining California Condors. The decision to remove the Condors from the wild was finalized by the FWS in December 1985. While the parties have filed cross-motions for summary judgment as well as supporting legal memoranda and other pleadings in connection with plaintiff's motion for preliminary injunction, this Opinion resolves only the latter motion.

 For the reasons set out below, the plaintiff's application for injunctive relief is granted. The Court will also grant the plaintiff's motion for summary judgment. The opinion supporting that ruling will be filed at a later date.

 BACKGROUND

 The National Audubon Society is a long-established nonprofit national organization concerned with the conservation and prudent use of the Nations's natural resources, including its endangered species. The California Condor is the largest flying land bird in North America and one of the rarest species of birds on this continent. On March 11, 1967, it was one of the first species to be listed under the Endangered Species Act ("ESA"), 16 U.S.C. § 1533. See 50 C.F.R. 17.11(h). At that time it was estimated that only 40 Condors remained in the wild.

 There is little dispute as to the underlying facts in this litigation. The parties have stipulated and agreed on the many facts material to the outcome of the case. They rely principally upon the Administrative Record ("A.R.") as the source of their factual assertions.

 There are at the present 26 Condors in existence; five continue to live in the wild, and 21 are held by the Los Angeles Zoo and the San Diego Wild Animal Park. Before the winter of 1984-85, there were 15 birds in the wild, but during that winter six of the birds perished from as yet unknown causes. *fn1" Later in the spring of 1985, three of the remaining nine Condors were captured. The death of the bird designated AC-3 *fn2" on January 18, 1986 left a population of only five wild Condors.

 In December 1979, a consortium of governmental and private groups joined in a Captive Recovery Program designed to work toward and ensure the preservation and the continued survival in the wild of the California Condor. Included in that group are FWS, Audubon, the California Department of Fish and Game, the United States Forest Service, and the Bureau of Land Management. FWS and Audubon were named as the agencies having lead responsibility for establishing and conducting the California Condor research and recovery programs.

 The Recovery Program has long emphasized that three measures are essential to ensuring the continued survival of the species in the wild: (1) captive propagation of birds to be reintroduced into the wild; (2) research relying principally on radio telemetry to study the habits and the habitat of the wild Condor population; and (3) continued efforts to preserve and acquire important habitats.

 Until December 1985, FWS viewed as critical to the Recovery Program the continued maintenance of a wild population. On December 16, 1985, FWS executed an abrupt about-face and issued a permit authorizing the capture and removal of all surviving wild California Condors.

 After learning of FWS' intentions, Audubon then filed this suit, seeking injunctive and declaratory relief against any further trapping of Condors. Plaintiff charges in the complaint filed on January 9, 1986, that the issuance of the amended permit was arbitrary and capricious and thus violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A), as well as Sections 7 and 10 of the Endangered Species Act, 16 U.S.C. §§ 1536, 1539, *fn3" and Section 102 of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332. Specifically with regard to its challenges under the latter two statutes, Audubon contends that in making its decision, FWS (1) failed to "insure" that capture of the remaining Condors would not "jeopardize the continued existence of . . . [the] species or result in the destruction or adverse modification of habitat of such species . . .," in violation of ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2); (2) failed to otherwise protect the habitat of the Condors in violation of ESA § 7(a)(2); (3) failed to consider the "best scientific . . . data," in violation of ESA § 7(a)(2) and 50 C.F.R. § 17.22(b)(5) (regulations promulgated under ESA § 10, 16 U.S.C. § 1539); (4) failed to comply with the emergency permit requirements of ESA § 10, 16 U.S.C. § 1539(c), and (5) failed to prepare an Environmental Impact Statement ("EIS") as required by NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C) or to adequately discuss the available alternatives pursuant to NEPA § 102(2)(E), 42 U.S.C. § 4332(2)(E).

 ANALYSIS

 In order to prevail on its motion for preliminary injunction, plaintiff must show (1) likelihood of success on the merits; (2) that, without obtaining the relief requested, it would be irreparably injured; (3) that the issuance of a stay would not substantially harm other parties; and (4) that the public interest favors the issuance of the injunction. Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843 ...


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