Substances Act, Congress decided not to
recognize a national security necessity defense to the MBTA. This Court
can not and will not read into the MBTA an exception that Congress has
not included in the statute.
Defendants have failed to recognize the potential impact of this
holding on this case. Because the MBTA's prohibitions include those who
are acting by what could be termed a national security necessity, the
Supreme Court's holding in Oakland Cannabis arguably precludes
consideration of evidence of any harm to the military from issuing the
injunction. The Supreme Court has arguably narrowed the scope of what the
Court can consider in balancing the equities to exclude evidence of harm
to defendants that will occur if training is halted.
Once again, regardless of the equities at issue in this case, the scope
of this Court's discretion is limited to issuing "relief . . .
consider[ed] necessary to secure prompt compliance with the Act."
Weinberger, 456 U.S. at 320; Oakland Cannabis Buyers, 532 U.S. at 498.
Because the Oakland Cannabis Buyers decision raises doubts as to the
extent to which this Court can consider harms excluded by Congress from
the interests served by a criminal statute, and because the FWS has
repeatedly denied defendants' permit requests in the past, this Court is
not of the opinion that an injunction ordering defendants to only obtain
a permit will suffice to remedy the violations here.
Thus, the only option available that this Court can with any confidence
say will ensure compliance with the mandates of the APA and the MBTA is
ordering a halt to all military activities on FDM. As explained in
Oakland Cannabis Buyers, "[t]o the extent the district court considers
the public interest and the conveniences of the parties, the court is
limited to evaluating how such interest and conveniences are affected by
the selection of an injunction over other enforcement mechanisms." 532
U.S. at 498. Here, this Court is presented with one, and only one, viable
option for enforcing the requirements of these statutes.
This Court of course recognizes the weight and importance of the United
States' interest in using FDM for military training, particularly at this
point in time. This Court is also very mindful of the public's interest in
maintaining the readiness of our military and this Court's obligation to
include the public interest when balancing the equities. Railroad
Comm'n. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643 (1941) ("In
exercising their sound discretion, courts of equity should pay particular
regard for the public consequences in employing the extraordinary remedy
of injunction."). However, regardless of the balance, and regardless of
whether in another context this Court might conclude that the interests
of defendants and the public outweigh the interests of plaintiff, this
Court's discretion is limited by the facts of this case. There is only
one viable option presented to this Court for enforcing these statutes.
However, because this Court recognizes the impact this injunction will
have on the defendants' and the public's interests, rather than issue a
permanent injunction, this Court will issue a preliminary injunction for
30 days. If during that time the circumstances of this case change,
either by administrative or congressional action, this Court will
promptly take appropriate action. At the end of that 30 day period, this
Court will consider the entry of final judgment and a permanent
injunction, if necessary.
In light of this Court's Order of March 13, 2002 granting summary
judgment for plaintiff, and for the foregoing reasons, the defendants are
ORDERED to comply with § 706 of the Administrative Procedures Act
and § 703 of the Migratory Bird Treaty Act; it is
FURTHER ORDERED that all military training exercises conducted by
defendants on FDM that can potentially wound or kill migratory birds are
immediately enjoined; it is FURTHER ORDERED that this preliminary
injunction will remain in effect for 30 days from the date of this
Order; it is
FURTHER ORDERED that defendants shall immediately file an application
with the FWS for an MBTA permit for their activities on FDM; it is
FURTHER ORDERED that this Court will hold a status hearing in this case
on May 10, 2002, at 11 a.m. in Courtroom One; it is
FURTHER ORDERED that in light of the technological difficulties at the
last hearing, counsel for all parties shall appear in person at the
status hearing; it is
FURTHER ORDERED that for reasons given in open court, defendants' oral
motion for a stay of this injunction pending appeal is DENIED.
IT IS SO ORDERED.