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FUND FOR ANIMALS v. NORTON

September 9, 2003

THE FUND FOR ANIMALS, ET AL. PLAINTIFFS,
v.
GALE NORTON, SECRETARY, DEPARTMENT OF THE INTERIOR, ET AL. DEFENDANTS; KATHRYN BURTON, ET AL. PLAINTIFFS, V. GALE NORTON, ET AL. DEFENDANTS



The opinion of the court was delivered by: Emmet Sullivan, District Judge

MEMORANDUM OPINION

Pending before this Court is plaintiffs' motion for a preliminary injunction. Plaintiffs ask this Court to enjoin the State of Maryland from killing 525 mute swans over the remainder of this calendar year pursuant to a depredation permit issued by the U.S. Fish and Wildlife Service ("FWS") on August 11, 2003.

I. Parties

Plaintiff Fund for Animals is a national non-profit organization headquartered in New York City, NY, with a campaign Page 2 office in Silver Spring, Maryland, and 200,000 members nationwide. The organization is "committed to preserving animal and plant species in their natural habitats, and to preventing the abuse and exploitation of wild and domestic animals." Compl. ¶ 4. It brings this action on its own behalf and on behalf of its members who regularly observe, photograph, and study mute swans and other migratory birds, and who would therefore suffer aesthetic harm as a result of the killing of mute swans in Maryland pursuant to the FWS permit. Id. ¶ 5.

Plaintiff Patrick Hornberger lives on the Chesapeake Bay, in Trappe, Maryland, in an area in which a dozen or more mute swans can be found throughout the year. Id. ¶ 7. He enjoys viewing, hearing, feeding, and photographing the mute swans on and near his property, and has developed relationships with individual mating pairs. Id. He has also traveled to several other areas within the state of Maryland to interact with mute swans, and plans to do so again in the future. Id.

Plaintiff Wanda Morton lives in Easton, Maryland, and owns a farm along the Wye River, a tributary of Chesapeake Bay. Id. ¶ 10. She too enjoys viewing, hearing, feeding, and photographing mute swans on and near her property, and has become familiar with Page 3 individual mating pairs, going so far as to name several of them.*fn1 Id.

Defendant Gale Norton is the Secretary of the Department of the Interior, and is sued in her official capacity, based on her duty to ensure that the agencies within the Department comply with the requirements of the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703-712 (2003), National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332 et seq. (2003), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. (2003). Id. ¶ 18. Defendant Steven Williams is the Director of the Fish and Wildlife Service, and is sued in his official capacity as the person ultimately responsible for the issuance of the permit challenged here. Id. ¶ 19.

The Maryland Department of Natural Resources ("MDNR"), the holder of the challenged permit and the state agency responsible for its implementation, was granted permission to intervene as a party defendant on August 15, 2003, with the consent of the parties. Fund for Animals v. Norton, Civil Action No. 03-1710, Order of August 15, 2003.

II. Background Page 4

The mute swan, Cygnus olor, is a non-native species descended from birds imported from Europe to North America for ornamental purposes. See Hill v. Norton, 275 F.3d 98, 99 (D.C. Cir. 2001). There are approximately 14,000 mute swans in the "Atlantic Flyway," which is made up of 17 states along the Eastern Seaboard of the United States, ranging from Maine to Florida. Final Environmental Assessment for the Management of Mute Swans in the Atlantic Flyway (July 31, 2003) ("Final EA") at 26-27.

Prior to the D.C. Circuit's 2001 ruling in Hill v. Norton, in which the Court of Appeals deemed mute swans to be protected by the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703-712 (2003), primary responsibility for the management of mute swan populations fell to the states. See Hill v. Norton, 275 F.3d at 100. The federal Department of the Interior also engaged in management of mute swans on federal properties, including the Blackwater National Wildlife Refuge located in the State of Maryland, on an ad hoc basis. Id. at 100.

Following the Circuit's ruling in Hill v. Norton, the FWS began issuing permits authorizing the "take"*fn2 of mute swans to states requesting them for purposes of managing the mute swan Page 5 population. Pls.' Mem. in Supp. Mot. Prelim. Inj. ("Pls.' Mot.") at 6-7; Fed. Def.'s Opp'n to Pls.' Mot. for Prelim. Inj. ("Def.'s Opp'n") at 5. Prior to July 2003, FWS did so without performing any prior assessment of their environmental impacts, based on its finding that issuance of the permits fell within a "categorical exclusion" to the requirements of the National Environmental Policy Act ("NEPA").*fn3 Def.'s Opp'n at 5-6. During calendar year 2002, FWS issued 66 permits authorizing the lethal take of 1,758 mute swans, and 66 permits authorizing lethal take of 3,605 mute swans in calendar year 2003. Id. at 5.

On March 13, 2003, the state of Maryland applied to FWS for a permit authorizing it to "remove up to 1,500 adult and subadult mute swans" as part of "a comprehensive mute swan management plan that will be implemented in 2003." See Maryland Dep't of Natural Res. Mem. in Opp'n to Pls.' Mot. for Prelim. Inj. ("MDNR Opp'n") at 28, Ex. 5. Approximately a month later, Maryland published Mute Swans in Maryland: A Statewide Management Plan (April 14, 2003) ("MD Plan"). On April 17, 2003, the FWS granted Maryland's request for a permit authorizing the killing up to 1,500 mute swans. Pls.' Mot. at 7, Ex. 9; Def.'s Opp'n at 5. Page 6

Shortly thereafter, plaintiff Fund for Animals commenced an action challenging the issuance of the Maryland permit. Fund for Animals v. Norton, Civil Action No. 03-1049 (D.D.C. 2003). The case was subsequently voluntarily dismissed in exchange for Maryland's voluntary temporary surrender of its permit pending preparation of a NEPA Environmental Assessment ("EA") by the FWS which would review the issuance of permits authorizing take of mute swans to a number of states along the Eastern Seaboard. Pls.' Mot. at 7; Def.'s Opp'n at 6. During the EA process, permits issued to states other than Maryland, including Delaware, New Hampshire, New York, Michigan, Ohio, Pennsylvania, Rhode Island, Vermont, and Wisconsin remained in effect, and presumably were acted upon. Pls.' Mot. at 7. A separate action challenging several of these permits was initiated in May of 2003, and has been consolidated with this case. Burton v. Norton, Civil Action No. 03-1102, and Fund for Animals v. Norton, Civil Action No. 03-1710, Order of August 15, 2003. Plaintiffs commenced this action on August 11, 2003, challenging all permits issued pursuant to the EA prepared in response to their previous litigation.

On July 2, 2003, FWS published a notice in the Federal Register indicating that a Draft Environmental Assessment on the Management of Mute Swans in the Atlantic Flyway ("Draft EA") was available for review by written request to the agency or on the agency's World Wide Web site, and setting a July 16, 2003 Page 7 deadline for submission of written comments. 68 Fed. Reg. 39,593 (July 2, 2003). The Draft EA concluded that mute swans are causing environmental damage by consuming up to 8 lbs per day of Submerged Aquatic Vegetation ("SAV"), underwater plant communities critical to the functioning of Chesapeake Bay and other watersheds, and through foraging and nesting habits which further destroy significant quantities of SAV. Draft EA at 3. The Draft EA considered four alternative methods of achieving the FWS' "primary goal" of "minimiz[ing] environmental damage . . . by mute swans" in the Atlantic Flyway, and proposed that the agency issue permits authorizing states to kill mute swans as part of integrated management plans so as to reduce the overall Flyway population from its current level of 14,300 birds to its 1986 level of 4,675 birds. Id. at viii, 1, 14.

On August 7, 2003, the agency published a Final EA dated July 31, 2003, and issued a "Finding of No Significant Impact" ("FONSI") and a Record of Decision ("ROD") memorializing its conclusion that its "preferred alternative," the issuance of depredation permits as part of an integrated population management plan contemplating "lethal take" of mute swans, combined with egg addling,*fn4 pinioning,*fn5 sterilization, and Page 8 live-trapping and relocation, would have no "significant impact on the human environment," and therefore preparation of an Environmental Impact Statement ("EIS") was unnecessary. 68 Fed. Reg. 47,084-85. On August 11, 2003, FWS granted Maryland's renewed application for a depredation permit, authorizing the State to kill up to 525 mute swans between August 27 and December 31, 2003. Administrative Record ("AR") at 1801-07.

Plaintiffs in Fund for Animals v. Norton, Civil Action No. 03-1710, commenced their action the following day, and, on August 14, 2003, moved for injunctive relief. Plaintiffs ask this Court to enjoin the State of Maryland from killing any mute swans pursuant to the August 11, 2003 depredation permit, or any other, until further Order of the Court.

III. Statutory Framework

A. MBTA

Plaintiffs assert a claim pursuant to the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703-712 (2003) and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq Page 9 (2003). The MBTA was enacted in 1918 to implement a convention between the United States and Great Britain (on behalf of Canada) for the protection of migratory birds. Center for Biological Diversity v. Pirie, 191 F. Supp.2d 161, 173 (D.D.C. 2002), vacated as moot sub nom. Center for Biological Diversity v. England, Nos. 02-5163 and 02-5180, 2003 WL 179848 (D.C. Cir. Jan. 23, 2003). It has since been amended to cover conventions with Mexico, Japan, and the former Soviet Union. 16 U.S.C. § 703, 712. The language of the MBTA is unequivocal, and prohibits, among other things, any killing of designated migratory birds

[u]nless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird . . . included in the terms of the [conventions between the United States and Great Britain, Mexico, Japan, and Russia.].
16 U.S.C. § 703.

Although "the MBTA provides no private cause of action against the United States government to enforce its provisions, . . . the law of this Circuit is clear: a plaintiff may sue a federal agency under the APA for violations of the MBTA." Center for Biological Diversity v. Pirie, 191 F. Supp.2d at 175; see also Hill v. Norton, 275 F.3d at 103; Humane Society of the United States v. Glickman, 217 F.3d 882 (D.C. Cir. 2000) (holding that federal agency action in violation of MBTA violates the Page 10 "otherwise not in accordance with law" provision of the APA). The APA requires courts to set aside agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706 (2003).

Permits such as that challenged here are governed by regulations issued pursuant to the MBTA:

The MBTA authorizes the Secretary of the Interior to promulgate regulations permitting the taking of migratory birds as long as the regulations are consistent with the Convention. 16 U.S.C. § 704; 712(2). The regulations prohibit the taking, possessing, importation, exportation, transportation, selling, or purchasing of any migratory birds except as allowed by a valid permit. 50 C.F.R. § 21.11.
Center for Biological Diversity v. Pirie, 191 F. Supp.2d at 174.

Pursuant to MBTA regulations, FWS issued a "depredation" permit authorizing Maryland to "take" mute swans as part of its overall mute swan management plan.*fn6 Under the applicable regulation, in order to obtain a depredation permit, the applicant must provide:

(1) A description of the area where depredations are occurring; (2) The nature of the crops or other interests being injured; (3) The extent of such injury; and (4) The particular species of migratory birds committing the injury.
50 C.F.R. § 21.41(b). Page 11

B. NEPA

Plaintiffs also assert a claim under the National Environmental Protection Act ("NEPA"), 42 U.S.C. § 4332 et seq., which requires federal agencies to prepare an Environmental Impact Statement ("EIS") for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). Such an EIS must address (1) the "environmental impact of the proposed action;" (2) any "adverse environmental effects which cannot be avoided;" (3)"alternatives to the proposed action;" (4) the balance between "local short-term use of [the human] environment and the maintenance of long-term productivity;" and (5) "any irreversible and irretrievable commitment of resources." 42 U.S.C. § 4332(C)(i)-(v).

Under the governing regulations, promulgated by the Council on Environmental Quality ("CEQ"), generally an agency first prepares an Environmental Assessment ("EA") to determine whether a proposed action will "significantly affect the quality of the human environment," thus triggering the statutory requirement that an EIS be prepared. 40 C.F.R. § 1501.4(b). An EA "[s]hall include brief discussions of the need for the proposal, of alternatives as required [by the statute], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted. 40 C.F.R. § 1508.9. Page 12

The question of whether a proposed action will "significantly affect the quality of the human environment" "requires considerations of both context and intensity." 40 C.F.R. § 1501.4(b), 1508.27. The applicable regulations further define these terms as follows:

(a) Context. . . means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short — and long-term effects are relevant. . . .
(b) Intensity . . . refers to the severity of impact . . .
Id.

With respect to intensity, the regulations go on to identify a number of factors, dubbed "significance factors," which "should be considered in evaluating intensity":

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. Page 13
(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.
40 C.F.R. § 1508.27(b).

Some courts have found that "[t]he presence of one or more of these factors should result in an agency decision to prepare an EIS." Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1023 (9th Cir. 2003) ("If agency's action is environmentally `significant' according to any of these criteria [set forth in 40 C.F.R. § 1508.27(b)], then DOT erred in failing to prepare an EIS."); see also Anderson v. Evans, 314 F.3d 1006, 1021 (9th Cir. 2002) (holding, after consideration of a single "significance Page 14 factor," that an EIS was required); Pub. Serv. Co. of Colo. v. Andrus, 825 F. Supp. 1483, 1495 (D. Idaho 1993); but see Born Free USA v. Norton, Civil Action No. 03-1497, 2003 WL 21871640, *16 (D.D.C. Aug. 8, 2003) (calling Andrus into question).

IV. Motion for Preliminary ...


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