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HUMANE SOCY. OF THE UNITED STATES v. LUJAN

June 18, 1991

THE HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs,
v.
MANUEL LUJAN, JR., et al., Defendants



The opinion of the court was delivered by: JACKSON

 THOMAS PENFIELD JACKSON, UNITED STATES DISTRICT JUDGE

 This case is brought by a public interest organization, the Humane Society of the United States, and various coalitions of homeowner/citizens, against the United States Secretary of the Interior and the Director of the Fish and Wildlife Service ("FWS" or "the Service") to prevent the implementation of defendants' decision to permit limited public deer hunting on a national wildlife refuge in Fairfax County, Virginia. The case is now before the Court on the parties' dispositive cross-motions for final judgment on the record, having been preceded by some evidentiary proceedings in open court on plaintiffs' several attempts to obtain preliminary injunctive relief. *fn1" For the reasons to follow, the Court will deny plaintiffs' motion and grant the defendants' motion, dismissing the complaint with prejudice.

 In August, 1989, the FWS issued a final rule, 54 Fed. Reg. 36032 (Aug. 31, 1989), opening the Mason Neck National Wildlife Refuge ("the Refuge") for deer hunting during the fall hunting season in Virginia. The Refuge, comprising approximately 2300 acres of Mason Neck, an 8000-acre peninsula on the south shore of the Potomac River 18 miles downstream from Washington, D.C., was established in 1969 as a habitat and sanctuary for bald eagles. It has been altogether closed to hunting for the first 20 years of its existence. The decision in 1989 to open it to deer hunting was impelled, in principal part, by FWS' desire to find an expedient to control the Refuge's burgeoning white-tailed deer population.

 The Humane Society questions the legitimacy of the Service's justification for the hunt, as well as its refusal to acknowledge the potential for harm to the wildlife species to which the Refuge is dedicated, the bald eagle. The homeowner organizations are primarily fearful of injury to people and property in the vicinity, although some individuals apparently share the Humane Society's abhorrence of animal hunting generally.

 Plaintiffs bring this action under an array of federal statutes respecting the Nation's wilderness assets. Each statute cited imposes some obligation or duty upon, inter alia, the Secretary and the Service, of which defendants' decision to open the Refuge to deer hunting, according to plaintiffs, arguably places them in breach. If, for example, bald eagles should be adversely affected by the hunt, accidentally or otherwise, the defendants will have been accomplices to a violation of the Bald and Golden Eagle Protection Act of 1940, 16 U.S.C. §§ 668-668d. So also with respect to the Migratory Bird Treaty Act of 1918, 16 U.S.C. §§ 703-712. The Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544, requires all federal agencies to "conserve" endangered species. The hunt, plaintiffs say, will actually place bald eagles in jeopardy, not "conserve" them. Moreover, plaintiffs allege defendants' finding that the hunt will have no "significant" environmental impact is simply wrong. It most assuredly will have such an impact - - on deer, on eagles, and possibly on people and property - - and, thus, the decision contravenes the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4335, by the absence of an environmental impact statement in the administrative record compiled in conjunction with the rule-making process resulting in the decision to implement the hunt.

 I.

 The Secretary and FWS have moved to dismiss Count IV of the complaint on procedural grounds. Count IV purports to assert a direct cause of action under the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 ("ESA"), the statute imposing the general obligation upon federal departments and agencies to "conserve" endangered species of wildlife, 16 U.S.C. § 1531(c)(1). The bald eagle is an endangered species, and ESA makes it unlawful for anyone to "take" a specimen of such species, 16 U.S.C. § 1538(a)(1)(B). *fn2" It also provides expressly for its enforcement by "citizen" civil suits commenced by "any person" against any other person, including the United States and its officials, to enjoin its violation. 16 U.S.C. § 1540(g)(1)(A). The final rule, the plaintiffs allege, does nothing to "conserve" the endangered bald eagles; to the contrary, it poses a significant danger that bald eagles will be "taken," even if inadvertently.

 In Hallstrom v. Tillamook County, 493 U.S. 20, 110 S. Ct. 304, 107 L. Ed. 2d 237 (1989), however, the Supreme Court interpreted a similar statutory pre-suit notice requirement, observing that the statutory provision "could not be clearer." The Supreme Court continued to hold that, by the literal language of the statute, "compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit." 110 S. Ct. at 309. For this Court's purposes, the holding of Hallstrom is equally clear, and plaintiffs make no effort to distinguish Hallstrom.3

 ESA clearly states that "written notice" of the violation must be given to the Secretary and to the violator as a condition precedent to suit. It was not given here. A party's "comment," submitted to an agency in the course of a rule-making, does not constitute the formal pre-suit notice required by ESA, no matter how vehemently it may have conveyed the party's intention to go to court if the rule ultimately adopted were not to its liking. Count IV of the complaint will be dismissed. *fn4"

 II.

 Other counts in the complaint, however, are based on the Refuge Recreation Act of 1982, 16 U.S.C. § 460k; the National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. §§ 668dd, 668ee; the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347; and a FWS regulation. "Agency action" alleged to be in contravention of these statutes is presumably amenable to judicial review under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) ("APA"). The parties have cross-moved for summary judgment on these remaining counts.

 In reviewing the FWS' decision to open the Mason Neck Refuge to deer hunting, the Court is, of course, obliged to apply the APA standard of review, viz., whether the agency acted "arbitrarily or capriciously, committed an abuse of discretion, or acted otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). *fn5" As always under the APA, the reviewing court is expected to limit itself to the contents of the administrative record. *fn6" Camp v. Pitts, 411 U.S. 138, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973). The reviewing court is also not to substitute its judgment for that of the agency. It is simply to ascertain whether the agency has examined the relevant data and articulated a satisfactory explanation for its actions, including a rational connection between the facts found and the choice ...


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