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San Juan Audubon Society v. Veneman

June 19, 2001

SAN JUAN AUDUBON SOCIETY ET AL., PLAINTIFFS,
v.
ANN VENEMAN, SECRETARY, DEPARTMENT OF AGRICULTURE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No.: 36

MEMORANDUM OPINION

DENYING THE DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION

On April 11, 2000, a coalition of environmental groups filed suit, claiming that the federal government had failed to meet its obligations to protect the endangered California condor (Gymnogyps Californianus) and other threatened or endangered animals. These groups, San Juan Audubon Society, Sinapu, Inc., and Wildlife Damage Review, Inc. (collectively "the plaintiffs"), seek declaratory relief and a permanent injunction against the defendants, the Wildlife Services and Animal and Plant Health Inspection Service of the United States Department of Agriculture, and Ann Veneman, in her official capacity as Secretary of Agriculture (collectively "the defendants"). Specifically, the plaintiffs allege that the defendants' use of its M-44 sodium cyanide ejectors program ("M-44 program") in certain areas violates restrictions imposed by the Environmental Protection Agency ("EPA"). The defendants use the poisonous M-44 sodium cyanide capsules ("M-44s") to kill animals suspected of preying on livestock and to protect threatened or endangered animals. According to the plaintiffs, however, the defendants regularly misplace the M-44s, leading to the deaths of California condors and other threatened or endangered animals.

On March 16, 2001, the defendants moved to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons that follow, the court will deny the defendants' motion.

II. BACKGROUND

The California condor is the largest bird in North America. See First Am. Compl. ("Compl.") at 12. It weighs about 22 pounds and has a wingspan of up to 9½ feet. See id. The California condor "remains one of the world's rarest and most imperiled vertebrate species." 61 Fed. Reg. 54044 (Oct. 16, 1996). It is an opportunistic scavenger, feeding only on carcasses after long-distance reconnaissance flights. See Compl. at 12-13. The federal government has listed the California condor as an endangered animal since 1967. See 61 Fed. Reg. 54044. Poisoning was one of several factors that led to the dramatic decline of the California condor population. See id. at 54046.

In this case, the plaintiffs allege that the defendants' failure to follow certain EPA restrictions is placing the California condor population and other threatened or endangered animals at great risk. See Compl. at 16. The other threatened or endangered animals include wolves, jaguars, lynx, bald eagles, and grizzly bears. See Compl. at 16.

Congress has given the Secretary of Agriculture ("Secretary") the power to carry out wildlife-control programs necessary to protect the nation's agricultural resources. See Mot. to Dismiss at 2. For example, Title 7 U.S.C. sections 426-426(b) authorize the Secretary to eradicate, suppress, or bring under control animals injurious to agriculture, horticulture, forestry, animal husbandry, wild game animals, fur-bearing animals, and birds. The Secretary is also authorized to control "nuisance mammals and birds." See id. (quoting 7 U.S.C. § 426(c)). As permitted by statute, the Secretary has delegated her authority under 7 U.S.C. sections 426-426(b) and section 426(c) to the Animal and Plant Health Inspection Service ("APHIS"), an agency of the United States Department of Agriculture. See id. Within APHIS, this authority resides with the Wildlife Services program ("APHIS-WS"). See id.

As part of its nationwide wildlife-control program, APHIS-WS uses the M-44s to protect federally designated threatened or endangered animals and to combat or control communicable diseases. See Mot. to Dismiss at 2. The M-44s are targeted at predators in an effort to protect threatened or endangered animals. See Opp'n to Defs.' Mot. to Dismiss ("Pls.' Opp'n") at 2. The EPA regulates the use of the M-44s. See Federal Insecticide, Fungicide & Rodenticide Act ("FIFRA"), 7 U.S.C. § 136(a). It is unlawful to use registered pesticides, such as the M-44s, in a way that violates EPA restrictions. See id. at § 136(j)(a)(2)(F). With this background, the court turns to the case at bar.

The EPA's current M-44 use restrictions require the defendants to use maps prepared by the U.S. Fish and Wildlife Service ("FWS") to protect areas where federally listed threatened or endangered animals may be adversely affected. See EPA Registration No. 56228-15, Restriction 9 (June 10, 1999). The California condor and other threatened or endangered animals have been seen in Arizona, Utah, Colorado, Wyoming, and New Mexico. See Compl. at 15. The defendants are required to refer to maps prepared by FWS when placing the M-44s in these areas. See Compl. at 15-16.

The plaintiffs claim that the defendants usually fail to use the required maps. See Pls.' Opp'n at 3. As a result, the defendants allegedly are not aware of areas where the California condor or other threatened or endangered animals may be adversely affected. See Compl. at 17. Even though the M-44s are targeted toward predatory animals, APHIS-WS's use of the M-44s has allegedly killed "non-target[ed]" animals, such as the California condor and other threatened or endangered animals by poisoning them (albeit unintentionally) with the M-44s. See Compl. at 16.

The lead plaintiff in this case is the San Juan Audubon Society ("San Juan"). San Juan is the Southwest Colorado chapter of the National Audubon Society. See Compl. at 3. It is dedicated to the preservation of birds and their habitat through education and advocacy. See id. The other plaintiffs are Sinapu, Inc. and Wildlife Damage Review, Inc. The plaintiffs brought this action on behalf of themselves, their members, and their staff. See id. at 4, 6, 7. Originally, the plaintiffs' suit contained two causes of action: (1) violation of the Endangered Species Act, 16 U.S.C. ยงยง 1531-1544 ("ESA"), and (2) violation of the ...


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