Fund for Animals v. Kempthorne, No. 05-2603 (2d Cir. 2008)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on August 14, 2008.
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05-2603-cv Fund for Animals v. Kempthorne 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 5 (Argued: November 9, 2007 Decided: August 14, 2008 Errata filed: September 18, 2008) 6 Docket No. 05-2603-cv 7 ------------------------------------- 8 9 10 11 THE FUND FOR ANIMALS, HUMANE SOCIETY OF THE UNITED STATES, DEFENDERS OF WILDLIFE, ANIMAL RIGHTS FOUNDATION OF FLORIDA, DONALD FEARE, GUSTAV W. VERDERBER, JULIE BAKER, KRISTI GHOLSON, COLLETTE ADKINS GIESE, MARIAN PROBST, 12 Plaintiffs-Appellants, 13 - v - 14 15 16 17 18 19 DIRK KEMPTHORNE, Secretary of the Interior, H. DALE HALL, Fish and Wildlife Service Director, CHUCK CONNER, Acting Secretary of Agriculture, and CINDY SMITH, Administrator of the Animal and Plant Health Inspection Service, 20 ------------------------------------- 21 22 Defendants-Appellees. Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges. Appeal from a judgment of the United States District 23 Court for the Southern District of New York (P. Kevin Castel, 24 Judge) granting the defendants' motion for summary judgment and 25 dismissing plaintiffs' claims challenging the defendants' Public 26 Resource Depredation Order, 50 C.F.R. § 21.48, as a violation of 27 treaty obligations and federal statutes. 28 Affirmed. 1 2 3 4 5 6 7 8 KIMBERLY D. OCKENE, Meyer Glitzenstein & Crystal (Howard M. Crystal, Eric R. Glitzenstein, Meyer Glitzenstein & Crystal, Washington, DC; and Leonard D. Egert, Amy Trakinski, Egert & Trakinski, New York, NY, of counsel), Washington, DC, for PlaintiffsAppellants. 9 10 11 12 13 14 15 SARAH S. NORMAND, Assistant United States Attorney (Michael J. Garcia, United States Attorney for the Southern District of New York, and Sara L. Shudofsky, Assistant United States Attorney, of counsel), New York, NY, for Defendants-Appellees. 16 17 SACK, Circuit Judge: The plaintiffs appeal from a judgment of the United 18 States District Court for the Southern District of New York (P. 19 Kevin Castel, Judge), which, among other things, dismissed on a 20 motion for summary judgment their claims challenging the Public 21 Resource Depredation Order, 50 C.F.R. § 21.48 (the "Depredation 22 Order"), on the grounds that it violates treaty obligations of 23 the United States and federal statutes. 24 whether the defendants issued the Depredation Order in compliance 25 with the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 et 26 seq., the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, 27 the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 28 et seq., and international treaties relating to the treatment of 29 migratory birds to which the United States is a party. 30 We consider on appeal BACKGROUND 31 The plaintiffs are individuals who, and organizations 32 whose members, derive pleasure from observing water birds known 2 1 as double-crested cormorants ("cormorants") in their natural 2 habitat. 3 Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated 4 by international treaties to which the United States is a party, 5 and by federal statutes and regulations. 6 Service ("FWS") has been delegated primary responsibility for 7 regulating migratory birds, including cormorants. 8 Bird Permits; Regulations for Double-Crested Cormorant 9 Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003). 10 These birds are not protected by the Endangered Species The Fish and Wildlife See Migratory The plaintiffs brought this action to challenge the 11 Depredation Order, which, they allege, violates the relevant 12 treaties and statutes by "authoriz[ing] state fish and wildlife 13 agencies, Indian Tribes, and U.S. Department of Agriculture . . . 14 employees to kill an unlimited number of federally protected 15 double-crested cormorants in New York and twenty-four other 16 States, without any restrictions on time of year or location of 17 the killings, without any advance notice to the FWS, and without 18 any showing of specific, localized harm caused by the 19 cormorants." 20 Compl. ¶ 1. Because they are migratory birds, cormorants regularly 21 cross national boundaries. Prior to 1916, the treatment of these 22 birds was regulated by individual nations within their own 23 borders, making it difficult for any individual country to 24 protect their populations from over-hunting or other harm. 25 order to create a "uniform system" for migratory birds that 26 passed through their territories, the United States in 1916 3 In 1 negotiated a treaty with the United Kingdom, acting on behalf of 2 Canada, to coordinate protection of certain bird populations. 3 See Convention Between the United States of America and the 4 United Kingdom of Great Britain and Ireland for the Protection of 5 Migratory Birds in the United States and Canada, U.S.-Gr. Brit., 6 Proclamation, Aug. 16, 1916, 39 Stat. 1702 ("U.K. Convention"). 7 Similar treaties were later entered into by the United States 8 with Mexico in 1936, Japan in 1972, and the Soviet Union in 1976. 9 See Convention between the United States of America and the 10 United Mexican States for the Protection of Migratory Birds and 11 Game Mammals, U.S.-Mex., Feb. 7, 1936, 50 Stat. 1311 ("Mexico 12 Convention"); Convention between the Government of the United 13 States of America and the Government of Japan for the Protection 14 of Migratory Birds and Birds in Danger of Extinction, and Their 15 Environment, U.S.-Japan, Mar. 4, 1972, 25 U.S.T. 3329; Convention 16 between the United States of America and the Union of Soviet 17 Socialist Republics Concerning the Conservation of Migratory 18 Birds and Their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 19 U.S.T. 4647. 20 protected under its terms. 21 amended in 1972, explicitly applies to cormorants. 22 23 24 25 26 27 28 29 Each of these treaties lists the birds that are Only the Mexico Convention, as The original 1936 Mexico Convention provides, in pertinent part: ARTICLE I. In order that the species may not be exterminated, the [United States and Mexico] declare that it is right and proper to protect birds denominated as migratory . . . by means of adequate methods which will permit, in so far as the respective high 4 1 2 3 4 contracting parties may see fit, the utilization of said birds rationally for purposes of sport, food, commerce and industry. 5 6 7 8 ARTICLE II. The [United States and Mexico] agree to establish laws, regulations and provisions to satisfy the need set forth in the preceding Article, including: 9 10 11 12 A) The establishment of close seasons, which will prohibit in certain periods of the year the taking of migratory birds . . . . 13 . . . 14 15 16 17 C) The limitation of their hunting to four months in each year, as a maximum, under permits issued by the respective authorities in each case. 18 19 D) The establishment of a close season for wild ducks . . . . 20 . . . 21 22 ARTICLE IV. . . . [T]he following birds shall be considered migratory: 23 Migratory game birds. . . . 24 Migratory non-game birds. . . . 25 Mexico Convention, arts. I, II, IV, 50 Stat. at 1312-14. The 26 1972 amendments to the Mexico Convention added the cormorant 27 family of birds, but did not specify whether it was a game or 28 non-game bird. 29 United Mexican States and the Government of the United States of 30 America Amending Article 4 of the Convention for the Protection 31 of Migratory Birds and Game Mammals, Signed at Mexico City on 32 February 7, 1936, U.S.-Mex., Mar. 10, 1972, 23 U.S.T. 260 33 ("Mexico Convention 1972 Amendments"). 34 present purposes that the cormorant is a non-game bird. See Agreement between the Government of the 5 It is undisputed for 1 The MBTA implements these treaties as federal law. It 2 was first enacted in 1918 to reflect the mandates of the U.K. 3 Convention, and later amended to reflect each of the subsequently 4 negotiated treaties. 5 by any means or in any manner," inter alia, to "take" birds 6 listed in the relevant treaties. 7 a bird means "to pursue, hunt, shoot, wound, kill, trap, capture, 8 or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, 9 capture, or collect" it. 10 11 The statute makes it "unlawful at any time, 16 U.S.C. § 703(a). To "take" 50 C.F.R. § 10.12. The MBTA also delegates authority to the United States Secretary of the Interior, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 from time to time, having due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds, to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof, and to adopt suitable regulations permitting and governing the same, in accordance with such determinations, which regulations shall become effective when approved by the President. 28 16 U.S.C. § 704. 29 Secretary to the FWS. 30 This authority has been subdelegated by the See 50 C.F.R. § 10.1. When migratory birds converge in large numbers, they 31 may consume large quantities of local plants, fish, or other 32 species. 33 dependent on those species. 34 population has grown over the past several decades, the FWS has 6 In doing so, they may harm commercial activity For example, as the cormorant 1 received increasing numbers of complaints from fishermen and 2 operators of aquaculture facilities, such as commercial catfish 3 farms, asserting that cormorants are responsible for plundering 4 the same fish that they seek to gather, cultivate, and sell. 5 When migratory birds cause, or are about to cause, such 6 acts of "depredation,"1 the FWS may, upon application, issue a 7 permit that allows a person to take migratory birds for 8 depredation control purposes. 9 Applications for such permits must include, inter alia, "(1) A See 50 C.F.R. § 21.41. 10 description of the area where depredations are occurring; (2) The 11 nature of the crops or other interests being injured; (3) The 12 extent of such injury; and (4) The particular species of 13 migratory birds committing the injury." 14 subject to a variety of conditions, including limitations on the 15 manner in which the birds in question may be killed and the 16 proper methods of disposing of their remains. 17 Id. Permittees are Id. As an alternative to individual permits, the FWS may, 18 "[u]pon the receipt of evidence clearly showing that migratory 19 game birds have accumulated in such numbers in a particular area 20 as to cause or about to cause serious damage to agricultural, 21 horticultural, and fish cultural interests . . . issue by 22 publication in the Federal Register a depredation order . . . ." 23 50 C.F.R. § 21.42. 24 is an "emergency measure designed to relieve depredations only" 1 Such an order must state explicitly that it "[A]n act of plundering, despoiling, or making inroads." Webster's Third International Dictionary Unabridged 606 (2002). The FWS regulations do not define the word. 7 1 and it must impose certain restrictions on the manner in which 2 birds may be killed. 3 Id. In addition to these general provisions for addressing 4 depredations, the FWS also provides specific rules for 5 depredation orders that have been issued relating to specific 6 species. 7 were all in effect prior to and at the time of the FWS's 8 promulgation of the orders at issue in this appeal. 9 See 50 C.F.R. §§ 21.43-46. The rules referred to above Agency Proceedings 10 In response to complaints that cormorants' fish-eating 11 habits were becoming increasingly costly to aquaculture and other 12 industries, the FWS in 1998 adopted an Aquaculture Depredation 13 Order, 50 C.F.R. § 21.47, allowing the taking of cormorants 14 without a permit when they are found committing or about to 15 commit acts of depredation on aquaculture stocks, subject to 16 various conditions and only within thirteen enumerated states. 17 See id. 18 Depredation Order at issue in this appeal. 19 This provision was amended when the FWS adopted the In response to continued complaints of cormorant- 20 related depredations, and an increase in complaints unrelated to 21 aquaculture, the FWS in 1999 issued a Notice of Intent to develop 22 a "national cormorant management plan" with an accompanying 23 Environmental Impact Statement ("EIS") as required by NEPA. 24 Migratory Bird Permits; Notice of Intent To Prepare an 25 Environmental Impact Statement and National Management Plan for 26 the Double-Crested Cormorant, 64 Fed. Reg. 60,826 (Nov. 8, 1999); 8 1 see also 42 U.S.C. § 4332(2)(C). The FWS also formed a 2 "Cormorant Team" consisting of staff members from various FWS 3 offices which consulted with the U.S. Department of Agriculture's 4 Animal and Plant Health Inspection Service ("APHIS"). 5 evaluated methods of managing the cormorant population. 6 December 2001, it released a Draft EIS ("DEIS") for public 7 comment. 8 Statement on Double-Crested Cormorant Management, 66 Fed. Reg. 9 60,218 (Dec. 3, 2001). The team In Notice of Availability; Draft Environmental Impact The DEIS presented "six management 10 alternatives to address biological and socioeconomic resource 11 conflicts associated with cormorants." 12 action (continuation of existing cormorant management practices); 13 2) only non-lethal management techniques; 3) expansion of 14 existing cormorant management policies; 4) a new depredation 15 order; 5) reduction of regional cormorant populations; and 6) 16 frameworks for a cormorant hunting season. 17 alternatives, the team recommended the fourth, proposing in the 18 DEIS the adoption of a new depredation order "to allow public 19 resource managers greater flexibility in dealing with cormorant 20 conflicts while ensuring Federal oversight via reporting and 21 monitoring requirements." 22 Id. They included: 1) no Id. From these Id. The proposed depredation order, as described by the 23 DEIS, "authoriz[es] State, Tribal, and Federal land management 24 agencies to implement a [cormorant] management program, while 25 maintaining Federal oversight of [cormorant] populations via 26 reporting and monitoring requirements." 9 U.S. Fish and Wildlife 1 Service, Draft Environmental Impact Statement: Double-Crested 2 Cormorant Management 17 (2001), available at 3 http://www.fws.gov/migratorybirds/issues/cormorant/deis/chapter2. 4 pdf (last visited July 22, 2008). 5 would be allowed to take cormorants without a permit "to protect 6 biological resources . . . on public lands and waters," though 7 they were to "utilize non-lethal management tools to the extent 8 they consider[ed] appropriate." 9 be required to keep records of all activities and report this These land management agencies Id. at 18. 10 data to the FWS annually. 11 authority "to immediately suspend or revoke any Agency's 12 authority under [the proposed depredation order]" if the agency 13 did not adhere to the terms specified in the order, if the FWS 14 determined that cormorants no longer posed a threat to public 15 resources, or if the viability of cormorant populations were 16 threatened. 17 Id. at 19. The agencies would The FWS reserved the Id. In March 2003, the FWS published a proposed rule 18 reflecting slight modifications of the proposed depredation order 19 as described in the DEIS. 20 for Double-Crested Cormorant Management, 68 Fed. Reg. 12,653 21 (proposed Mar. 17, 2003) (to be codified at 50 C.F.R. pt. 21). 22 Among other changes, the proposed rule reduced the number of 23 states to which the proposed depredation order would apply from 24 forty-eight to twenty-four, identified with greater specificity 25 the agencies to which the order would apply, restricted its 26 applicability to land and freshwater (therefore excluding Migratory Bird Permits; Regulations 10 1 saltwater), and allowed more methods for taking cormorants. 2 at 12,654. 3 responsibility for regulating [cormorant] management, on-the- 4 ground management activities are largely carried out by entities 5 such as State fish and wildlife agencies, wildlife damage control 6 agencies such as the Wildlife Services program of [APHIS] and, in 7 some cases, by private citizens." 8 9 Id. It also noted that "[w]hile the [FWS] has the primary Id. The FWS published its final EIS in August 2003 and issued a final rule on October 8, 2003. See Notice of 10 Availability; Final Environmental Impact Statement on 11 Double-Crested Cormorant Management, 68 Fed. Reg. 47,603 (Aug. 12 11, 2003); Migratory Bird Permits; Regulations for Double-Crested 13 Cormorant Management ("Final Rule"), 68 Fed. Reg. 58,022 (Oct. 8, 14 2003). 15 C.F.R. § 21.48, and amended the Aquaculture Depredation Order, 50 16 C.F.R. § 21.47. 17 The Final Rule established the Depredation Order, 50 Before issuing the order, the FWS reviewed studies 18 related to the growth, breeding, and travel patterns of 19 cormorants in North America. 20 the available science, the agency concluded that: 21 22 23 24 25 26 27 28 29 30 31 32 Based on what it considered to be (1) [Cormorants] are generalist predators whose diet varies considerably between seasons and locations and tends to reflect fish species composition; (2) The present composition of cormorant diet appears to have been strongly influenced by human-induced changes in the natural balance of fish stocks; (3) "Impact" can occur at different scales, such that ecological effects on fish populations are not necessarily the same as effects on recreational or commercial catches, or vice versa; (4) Cormorant impact 11 1 2 3 4 5 is generally most significant in artificial, highly managed situations; and (5) Because environmental and other conditions vary locally, the degree of conflicts with cormorants will vary locally. 6 Final Rule, 68 Fed. Reg. at 58,025. The FWS noted that in 7 addition to the losses at aquaculture facilities resulting from 8 cormorant depredations, cormorants could also have an adverse 9 impact on other birds and local vegetation. Id. 10 In its final form, the Depredation Order "authorizes 11 State fish and wildlife agencies, Federally recognized Tribes, 12 and State Directors of the Wildlife Services program . . . to 13 prevent depredations on the public resources of fish . . . , 14 wildlife, plants, and their habitats by taking without a permit 15 double-crested cormorants found committing or about to commit, 16 such depredations." 17 the initial use of non-lethal control methods, id. § 21.48(d)(1), 18 applies only to cormorants, id. § 21.48(d)(7), and mandates 19 specific measures intended to limit the impact of control efforts 20 on species protected under the Endangered Species Act, 21 id. § 21.48(d)(8). 22 Order must, for each year in which they intend to act, provide "a 23 one-time written notice" to the FWS indicating their intent to 24 act under the Depredation Order, id. § 21.48(d)(9), and they must 25 notify the FWS in writing thirty days in advance if any "single 26 control action . . . would individually, or a succession of such 27 actions . . . would cumulatively, kill more than 10 percent of 28 the double-crested cormorants in a breeding colony," 50 C.F.R. § 21.48(c)(1). The rule requires Agencies acting pursuant to the Depredation 12 1 id. § 21.48(d)(9)(i). The FWS has the power to prohibit such 2 activity if the FWS deems it "a threat to the long-term 3 sustainability of double-crested cormorants or any other 4 migratory bird species." 5 also required to submit annual reports describing their 6 activities under the Depredation Order, including numbers of 7 cormorants killed and nests whose eggs were oiled, 8 id. § 21.48(d)(10)-(11), and the FWS reserves the right to 9 suspend or revoke the authority of any person acting pursuant to Id. § 21.48(d)(9)(ii). Agencies are 10 the Depredation Order, id. § 21.48(d)(13). In addition to 11 adopting the Depredation Order, the FWS expanded the Aquaculture 12 Depredation Order to allow cormorants to be taken at their winter 13 roost sites. Final Rule, 68 Fed. Reg. at 58,031. 14 District Court Proceedings 15 In February 2004, the plaintiffs filed a complaint in 16 the United States District Court for the Southern District of New 17 York challenging, inter alia, the FWS's adoption of the 18 Depredation Order, asserting that it was contrary to treaties to 19 which the United States is a party, federal statutes, and FWS 20 regulations. 21 judgment. The parties all eventually moved for summary 22 In a Memorandum and Order filed March 29, 2005, the 23 district court concluded that the Depredation Order is not in 24 conflict with the MBTA because it balances the factors set forth 25 by the MBTA and determines "'when, to what extent, if at all, and 26 by what means' the taking of [cormorants] is permissible." 13 Fund 1 for Animals v. Norton, 365 F. Supp. 2d 394, 408-11 (S.D.N.Y. 2 2005) (quoting 16 U.S.C. § 704(a)). 3 requires a national approach to migratory bird management, the 4 district court reasoned, the requirement is not in conflict with 5 the Depredation Order's limited delegation of discretion to state 6 agencies and regional branches of the FWS because the FWS "has 7 not abdicated its authority, or granted states free reign over 8 management of the cormorant population," particularly in light of 9 the Depredation Order's notice requirements and limits placed on To the extent that the MBTA 10 the manner in which cormorants may be taken. 11 district court also concluded that the Depredation Order does not 12 conflict with the Mexico Convention. 13 requires that each nation establish "close seasons" during which 14 takings are prohibited, the district court deferred to the FWS's 15 view that this provision applies only to the category of game 16 birds, which the parties agree does not include the cormorant. 17 Id. at 412-14. 18 Id. at 410-11. The Although the Convention The district court rejected the plaintiffs' argument 19 that the defendants' adoption of the Depredation Order was 20 arbitrary and capricious, and contrary to the APA, for it found 21 that the record adequately demonstrates that: 1) the double- 22 crested cormorant adversely affects public resources; 2) the 23 Depredation Order is a reasonable method of effectuating the 24 goals of the MBTA; and 3) the Depredation Order does not conflict 25 with the FWS's internal regulations. 14 Id. at 414-23. The court 1 also determined that the defendants had complied with the 2 requirements of NEPA by issuing the final EIS. Id. at 427-34. 3 The district court therefore granted the defendants' 4 motion for summary judgment, dismissing all of the plaintiffs' 5 claims. 6 7 The plaintiffs appeal the judgment of the district court, but only as to some of the issues it decided.2 DISCUSSION 8 9 I. 10 Standard of Review "We review de novo a district court's ruling on 11 cross-motions for summary judgment, in each case construing the 12 evidence in the light most favorable to the non-moving party." 13 White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 14 163, 167 (2d Cir. 2007). 15 under the APA, however, is limited. 16 informal rulemaking if it was "arbitrary, capricious, an abuse of 17 discretion, or otherwise not in accordance with law." 18 706(2)(A); see also, e.g., Nat'l Black Media Coal. v. FCC, 822 19 F.2d 277, 280 (2d Cir. 1987). 20 be supported by "substantial evidence," i.e., "less than a 21 preponderance, but more than a scintilla." 22 Town of Oyster Bay, 166 F.3d 490, 493-94 (2d Cir. 1999). 23 Substantial evidence "means such relevant evidence as a 2 Our review of the Depredation Order We may reverse an agency's 5 U.S.C. § An agency's factual findings must Cellular Tel. Co. v. The plaintiffs have declined to challenge on appeal the validity of the Aquaculture Depredation Order, 50 C.F.R. § 21.47, or the question of whether the Depredation Order violates the Endangered Species Act, 16 U.S.C. § 1532 et seq. 15 1 reasonable mind might accept as adequate to support a 2 conclusion." 3 (1951) (internal quotation marks and citation omitted). 4 reviewing court must take into account contradictory evidence in 5 the record, but the possibility of drawing two inconsistent 6 conclusions from the evidence does not prevent an administrative 7 agency's finding from being supported by substantial evidence." 8 Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 523 9 (1981) (internal quotation marks and citations omitted). Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 "The When an 10 agency makes a decision in the face of disputed technical facts, 11 "[a] court must be reluctant to reverse results supported 12 by . . . a weight of considered and carefully articulated expert 13 opinion." 14 U.S. 453, 463 (1972). 15 Fed. Power Comm'n v. Florida Power & Light Co., 404 In evaluating agency reasoning, we must be satisfied 16 that the agency examined the relevant data and established a 17 "rational connection between the facts found and the choice 18 made." 19 Co., 463 U.S. 29, 43 (1983) (internal quotation marks and 20 citation omitted). 21 22 23 24 25 26 27 28 29 Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. The agency's action should only be set aside [if] it 'relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the products of expertise.' 16 1 Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir. 2000) 2 (quoting State Farm, 463 U.S. at 43), cert. denied, 531 U.S. 1070 3 (2001). 4 II. Whether the Depredation Order Violates the MBTA 5 The plaintiffs argue that by delegating "management 6 authority" to the states and other agencies, the Depredation 7 Order violates the MBTA's requirement that any killings of 8 protected birds be specifically authorized by the FWS. 9 with the district court, however, that the discretion granted to 10 these third parties is limited and subject to adequate oversight 11 by the FWS, and that the Depredation Order therefore does not 12 contravene the MBTA. 13 We agree Delegation of statutory responsibility by federal 14 agencies and officers to outside parties is problematic because 15 "lines of accountability may blur, undermining an important 16 democratic check on government decision-making," U.S. Telecom 17 Ass'n v. FCC, 359 F.3d 554, 565 (D.C. Cir.), cert. denied, 543 18 U.S. 925 (2004), and because outside parties, whether private or 19 sovereign, might not "share the agency's national vision and 20 perspective," id. at 566 (internal quotation marks omitted). 21 agree with the D.C. Circuit that, absent statutory authorization, 22 such delegation is impermissible. 23 We Id. The MBTA authorizes the Secretary of the Interior "to 24 determine when, to what extent, if at all, and by what means" 25 takings may occur, 16 U.S.C. § 704(a), and "to adopt suitable 26 regulations permitting and governing the same," id., but the 17 1 statute does not specifically provide for this authority to be 2 delegated to third parties. 3 of this authority beyond the agency would be impermissible, our 4 inquiry focuses on whether the Depredation Order is, in fact, 5 such a delegation. 6 Because any unauthorized delegation An agency delegates its authority when it shifts to 7 another party "almost the entire determination of whether a 8 specific statutory requirement . . . has been satisfied," U.S. 9 Telecom, 359 F.3d at 567, or where the agency abdicates its 10 "final reviewing authority," Nat'l Park & Conservation Ass'n v. 11 Stanton, 54 F. Supp. 2d 7, 19 (D.D.C. 1999). 12 advice and policy recommendations from outside parties, but they 13 may not "'rubber-stamp' decisions made by others under the guise 14 of seeking their 'advice.'" 15 all it reserves for itself is "the extreme remedy of totally 16 terminating the [delegation agreement]," Nat'l Park, 54 F. Supp. 17 2d at 20, an agency abdicates its "final reviewing authority," 18 id. at 19. 19 Agencies may seek U.S. Telecom, 359 F.3d at 568. If In the case at bar, the authority delegated by Congress 20 to the FWS under the MBTA bears little resemblance to the far 21 narrower band of discretion afforded to those acting under the 22 Depredation Order. 23 when, to what extent, if at all, and by what means, it is 24 compatible with the terms of the conventions" to permit takings 25 and killings of migratory birds. 26 acting pursuant to the Depredation Order are limited to takings The MBTA requires the Secretary "to determine 18 By contrast, third parties 1 of cormorants, and cormorants only, and even then, solely "to 2 prevent depredations on the public resources of fish . . . , 3 wildlife, plants, and their habitats." 4 Even if we accept the plaintiffs' warning that the term 5 "depredation" is not explicitly defined by the FWS and could 6 include birds engaging in the natural behavior of eating fish 7 with no evidence of harm to a fish population overall, the 8 Depredation Order nonetheless restricts the species, locations, 9 and means by which takings in response to such depredations could 50 C.F.R. § 21.48(c). 10 occur, thereby restricting the discretion that may be exercised 11 by third 12 parties acting under the Order. The Depredation Order therefore does not represent a 13 delegation of authority but is, instead, a permissible "grant of 14 permission [conditioned] on the decision of another entity, such 15 as a state, local, or tribal government, . . . [with] a 16 reasonable connection between the outside entity's decision and 17 the federal agency's determination." 18 567. 19 to determine what constitutes a "depredation" within a localized 20 context, the FWS was exercising its "broad permitting authority" 21 while incorporating "obviously relevant local concern[s] as . . . 22 element[s] of its decision process." 23 U.S. Telecom, 359 F.3d at By adopting a rule that provides local agencies discretion Id. As a practical matter, of course, by issuing the 24 Depredation Order, the FWS has limited its ability to regulate in 25 advance those takings that are authorized by the Order. 26 regard, the Depredation Order differs from the permit and 19 In this 1 rulemaking system for handling requests for depredation permits 2 set forth at 50 C.F.R. §§ 21.41-21.42, which prohibits 3 depredation control efforts unless the FWS first affirmatively 4 issues a permit or order, and which requires the FWS to consider 5 beforehand evidence of damage caused or about to be caused by 6 migratory birds. 7 that the FWS provide prior authorization in the form of a permit 8 for specific takings of migratory birds. 9 "suitable regulations permitting and governing" takings. There is, however, no statutory requirement The MBTA mandates only 16 10 U.S.C. § 704(a). 11 migratory birds, even in the absence of an advance permitting 12 scheme, satisfy this statutory requirement. 13 The regulations restricting the taking of It is also worth noting that the FWS does retain some 14 authority to regulate takings under the Depredation Order before 15 they occur. 16 advance of depredation control efforts that would "kill more than 17 10 percent of the double-crested cormorants in a breeding colony" 18 and may prevent any such efforts with simple notification. 19 C.F.R. § 21.48(d)(9)(i)-(ii). 20 authority of third parties to act pursuant to the Depredation 21 Order if they do not adhere to the Order's "purpose, terms, and 22 conditions" or if the "long-term sustainability of double-crested 23 cormorant populations is threatened." 24 Finally, the Depredation Order requires third parties acting 25 under it to submit annual reports detailing their activities. 26 The reports are required to include, among other things, an For example, the FWS must be notified 30 days in 50 It may also suspend or revoke the 20 Id. § 21.48(d)(13). 1 assessment of the effectiveness of control efforts, a description 2 of efforts made to minimize incidental takings, and a tally of 3 the number of cormorants and other migratory birds killed. 4 Id. § 21.48(d)(10). 5 monitoring authority, the FWS is amply equipped to monitor the 6 nationwide status of cormorant populations and to respond to 7 long-term effects on the species. 8 9 In light of this oversight power and We conclude that the Depredation Order does not violate the MBTA. 10 11 III. Whether the Depredation Order Conflicts with Treaties to Which the United States Is a Party 12 Article II(A) of the Mexico Convention -- the only 13 treaty that refers specifically to cormorants -- requires "[t]he 14 establishment of close seasons, which will prohibit in certain 15 periods of the year the taking of migratory birds . . . ." 16 Mexico Convention, art. II, 50 Stat. at 1312. 17 interpret this provision to apply to all migratory birds -- 18 whether or not they are game birds. 19 Depredation Order's failure to provide for a close season renders 20 the order contrary to the treaty and therefore in violation of 21 the MBTA. 22 "[s]ubject to the provisions [of] and [designed] in order to 23 carry out the purposes of the conventions"). 24 Mexico Convention itself is ambiguous regarding the question of 25 whether the "close seasons" requirement applies to all migratory 26 birds. The plaintiffs In their view, the See 16 U.S.C. § 704 (providing that the MBTA is We think that the We therefore defer to the FWS's reasonable view that the 21 1 Convention requires a close season only for the category of game 2 birds, which the parties agree do not include the cormorant. 3 "Respect is ordinarily due the reasonable views of the 4 Executive Branch concerning the meaning of an international 5 treaty." 6 155, 168 (1999); see also Sumitomo Shoji America, Inc. v. 7 Avagliano, 457 U.S. 176, 184-85 (1982) ("Although not conclusive, 8 the meaning attributed to treaty provisions by the Government 9 agencies charged with their negotiation and enforcement is 10 11 El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. entitled to great weight."). We will not create ambiguity where none exists, but the 12 text and structure of the Mexico Convention do not express a 13 clear intent regarding the need for a close season for all 14 migratory birds, as opposed to game birds - a category that does 15 not include cormorants. 16 migratory birds," not the taking of "all migratory birds." 17 section, moreover, creates an exception for "private game farms." 18 And Article II(C) specifies the minimum length of a close season 19 when "their hunting" would be limited, implicitly referring back 20 to the "migratory birds" referenced in subpart (A). 21 provisions addressing hunting can reasonably be read to suggest 22 that the "migratory birds" at issue in Article II(A) include only 23 those that are hunted, i.e., game birds. Article II(A) refers to "the taking of That These 24 The distinction drawn in Article IV between game birds 25 and non-game birds does little to clarify the meaning of Article 26 II(A) in this regard. The fact that the states parties to the 22 1 treaty made this distinction makes it clear enough that they were 2 aware of the differences between the two. 3 have specified "migratory game birds" at Article II(A) had they 4 meant that the requirement of close seasons applied only to game 5 birds. 6 as implied by the kinds of protection described in Article II, 7 some of which clearly apply only to game birds, and some of which 8 do not. 9 They therefore could But it is also possible that they viewed this distinction The plaintiffs suggest that the references to hunting 10 at subpart (C), and to game farms at subpart (A) restrict the 11 meaning of subpart (A)'s "migratory birds" only for those 12 specific purposes. 13 applicable to all migratory birds. 14 argument, however, there is nothing in the text or structure of 15 Article II that would foreclose the defendants' contrary 16 interpretation. 17 is not unreasonable, but the treaty does not unambiguously 18 require such an interpretation. 19 Article II(A) refers only to migratory game birds -- is also a 20 reasonable one, and we therefore are required to accept it.3 3 The "close season" requirement remains Even if we accept this The plaintiffs' interpretation of Article II(A) The agency's view -- that The plaintiffs also argue that even if Article II(A) is ambiguous, the defendants' interpretation is not entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984), because the agency never expressly adopted this interpretation during the administrative process. Even if the FWS's interpretation had not been adopted prior to this litigation, however, it appears that we would still accord deference to the executive branch view concerning the meaning of the Mexico Convention. See United States v. De La Pava, 268 F.3d 157, 164 n.6 (2d Cir. 2001) (accepting the State Department's view concerning rights under the Vienna Convention, 23 1 2 IV. Whether the FWS Acted Arbitrarily or Capriciously in Adopting the Depredation Order 3 The plaintiffs contend that the FWS acted arbitrarily 4 and capriciously in adopting the Depredation Order. 5 view, the Order "authoriz[ed] a full-scale assault on the 6 protected birds" in the absence of evidence that cormorants were 7 having a widespread impact. 8 9 Appellants' Br. at 46. In their We disagree. Although the Depredation Order applies to about half the states, depredation control efforts pursuant to the 10 Depredation Order may take place only when cormorants are found 11 "committing or about to commit" depredations and under specified 12 conditions. 13 efforts, the Depredation Order provides a "rational connection 14 between the facts found and the choice made" and is therefore 15 neither arbitrary nor capricious. 16 (internal quotation marks omitted). See 50 C.F.R. § 21.48(c)(1). By so limiting control See State Farm, 463 U.S. at 43 17 As the plaintiffs observe, the FWS does not provide 18 evidence that cormorants have a "widespread impact" on public 19 resources. 20 that the agency was not required to make any such finding to 21 support the Depredation Order. 22 addressing the impact of cormorants on various types of public 23 resources, the FWS noted that "negative impacts are typically 24 very site-specific and thus [cormorant]-fish conflicts are most 25 likely to occur on a localized scale," Final Rule, 68 Fed. Reg. Appellants' Br. at 46. But it is the FWS's position In its review of studies provided in response to questions posed by the Court of Appeals for the First Circuit). 24 1 at 58,025; that "[w]hile large-scale impacts on regional or 2 continental bird populations have not been documented" there was 3 evidence that other bird species could "be negatively impacted by 4 [cormorants] at a site-specific level," id.; and that cormorants 5 caused significant financial loss at aquaculture facilities and 6 fish hatcheries, which are localized by their nature, id. at 7 58,026. 8 cormorant predation had adverse impacts in states including 9 Wyoming, New York, and states in the Upper Midwest, South, and Studies reviewed by the FWS also concluded that 10 Mississippi Delta region, whether in the form of cormorant diets 11 skewed heavily towards fish, or economic losses due to cormorant 12 predation at aquaculture or hatchery facilities. 13 itself acknowledged, these studies did not provide a full picture 14 of the interaction between cormorants and local resources. 15 FWS recognized the "need for more information about [cormorants] 16 and their impacts on resources across a variety of ecological 17 settings" and agreed with critics of the Depredation Order that 18 "better information on population status and trends is 19 desirable." 20 was that in a large number of states, cormorants were responsible 21 for localized, site-specific harm to public resources, even if 22 not on a state-wide basis. 23 Id. at 58,023. As the FWS The What the FWS did establish, though, The remaining question, then, is whether the 24 Depredation Order is a reasonable response to this evidence of 25 harm. 26 Depredation Order, we conclude that it is. In light of the limited discretion afforded by the 25 The express intent of 1 the Order is "to enhance the ability of resource agencies to deal 2 with immediate, localized [cormorant] damages." 3 precisely what the Depredation Order does. 4 the public resources of affected states, 50 C.F.R. § 21.48(b), 5 (c)(1), and takings are permitted only of those cormorants 6 "committing or about to commit . . . depredations," id. § 7 21.48(c)(1). 8 reports. 9 would result in the taking of more than 10 percent of a breeding Id. And that is It applies only to All takings must be recorded and detailed in annual The FWS must be notified in advance of activity that 10 colony. 11 threat to the long-term sustainability of cormorants. 12 restrictions adequately limit depredation control activities 13 under the Depredation Order to address the types of harm the FWS 14 specifically found are caused by cormorants. 15 discussed, there may be some uncertainty in the meaning of 16 "depredation," the discretion provided by the Depredation Order 17 to local agencies to determine when depredations occur is not so 18 expansive that it would render the order arbitrary and 19 capricious. 20 The FWS may also prevent such activity it deems to be a These Although, as The plaintiffs also argue that instead of the 21 Depredation Order, the FWS should have adopted a "less drastic 22 liberalized permitting scheme" similar to some of the 23 alternatives considered by the FWS. 24 Perhaps such an approach would be a better response than the 25 Depredation Order in providing local agencies with some degree of 26 flexibility, addressing actual cormorant damage, and avoiding 26 Appellants' Br. at 49. 1 unnecessary takings of cormorants. However, the FWS has 2 articulated adequate explanations for its choice not to adopt 3 this, or another, alternative approach, preferring to grant local 4 agencies a degree of flexibility that the FWS thinks will more 5 "adequately address resource damages caused by [cormorants]" than 6 permit-based approaches. 7 is, of course, typically the case that there are several 8 different possible responses to a given problem, more than one of 9 which may be rational. Final Rule, 68 Fed. Reg. at 58,034. It In this case, the Depredation Order 10 represents one rational response to the problem of cormorant 11 depredation based on evidence available to the FWS, and the FWS 12 has explained its reasons for choosing one rational response over 13 others. 14 Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), 15 and we therefore conclude that the FWS complied with the APA in 16 adopting the Depredation Order. 17 18 19 This is the limit of our inquiry, see Citizens to V. Whether the FWS Complied with NEPA in Adopting the Depredation Order In order to adopt the Depredation Order, the FWS was 20 required by NEPA to prepare an EIS that would "provide full and 21 fair discussion of significant environmental impacts and . . . 22 inform decisionmakers and the public of the reasonable 23 alternatives which would avoid or minimize adverse impacts or 24 enhance the quality of the human environment." 25 § 1502.1; see 42 U.S.C. § 4332(2)(C). 26 statute that mandates a process rather than a particular 27 result. . . . 40 C.F.R. "NEPA is a procedural [It] does not command an agency to favor any 27 1 particular course of action, but rather requires the agency to 2 withhold its decision to proceed with an action until it has taken 3 a 'hard look' at the environmental consequences." 4 Reserve Coal., Inc. (SPARC) v. Slater, 352 F.3d 545, 557 (2d Cir. 5 2003) (internal citation omitted). 6 that NEPA's procedural requirements have been satisfied, not to 7 "interject itself within the area of discretion of the executive 8 as to the choice of the action to be taken." 9 Club, 427 U.S. 390, 410 n.21 (1976) (internal quotation marks and 10 Stewart Park & The court's role is to ensure Kleppe v. Sierra citation omitted). 11 Where there is uncertainty regarding the potential 12 effects of an agency action, "speculation in an EIS is not 13 precluded, [but] the agency is not obliged to engage in endless 14 hypothesizing as to remote possibilities." 15 Sec'y of Interior, 562 F.2d 1368, 1379 (2d Cir. 1977). 16 this uncertainty arises from disparate state and local regulation 17 that may affect federal action, we have not required detailed 18 information regarding the effects of these regulations in an EIS 19 where such "information would be of little or no utility in 20 determining the impact of state and local exercise of regulatory 21 powers, since each of the states and municipalities affected could 22 change its regulations . . . between the publication of the EIS" 23 and the time when such local regulations would affect the federal 24 action. 25 26 County of Suffolk v. Even where Id. The plaintiffs point to the lack of site-specific or localized analysis in the EIS as evidence that the FWS violated 28 1 NEPA's requirement to examine and permit the public to comment on 2 the environmental impact of the proposed Depredation Order. 3 under the order, the FWS did not commit itself to any site- 4 specific actions, and it would have been largely speculative for 5 the FWS to identify the specific, localized areas where control 6 efforts under the order would take place. 7 think that the FWS was obligated under NEPA to include site- 8 specific analyses in the EIS. 9 But We therefore do not Under the Depredation Order, local agencies have 10 discretion to select the particular sites at which to pursue 11 depredation control efforts, subject of course to the constraints 12 set forth in the Depredation Order. 13 not itself mandate that local agencies utilize their authority 14 under the Order. 15 localized, and because the Depredation Order limits control 16 efforts only to those cormorants "found committing or about to 17 commit" depredation, the exact locations where local agencies 18 might act pursuant to the Depredation Order could not be known 19 with any certainty by the FWS in advance. 20 uncertainties would render any site-specific EIS virtually 21 impossible to prepare. 22 control efforts under the Depredation Order could take place, it 23 would remain uncertain whether any control efforts actually would 24 take place there. 25 the relevant sites, let alone ascertaining whether any actions 26 under the Depredation Order would be warranted at that site. The Depredation Order does And, because cormorant depredation is highly These compounded Not only would it be uncertain where The FWS had no means of reliably identifying 29 1 Effects that are not reasonably foreseeable need not be included 2 in an EIS. 3 purposes those "which are caused by the action and are later in 4 time or farther removed in distance, but are still reasonably 5 foreseeable"); Suffolk County, 562 F.2d at 1378 ("If the 6 additional information would at best amount to speculation as to 7 [a] future event or events, it obviously would not be of much use 8 as input in deciding whether to proceed."). 9 not violate NEPA by omitting site-specific analyses in this case. 10 See 40 C.F.R. § 1508.8 (including as effects for EIS The FWS therefore did In the absence of any certain site-specific action, 11 then, it was sufficient for the FWS here to prepare only a 12 programmatic EIS. 13 statements on "broad actions" may be prepared "[g]enerically, 14 including actions which have relevant similarities, such as common 15 timing, impacts, alternatives, methods of implementation, media, 16 or subject matter."); see also Friends of Yosemite Valley v. 17 Norton, 348 F.3d 789, 801 (9th Cir. 2003) ("NEPA requires a full 18 evaluation of site-specific impacts only when a 'critical 19 decision' has been made to act on site development -- i.e., when 20 the agency proposes to make an irreversible and irretrievable 21 commitment of the availability of resources to [a] project at a 22 particular site. 23 decision' has been made begins with an accurate description of the 24 [agency's] proposed action." (emphases, internal quotation marks, 25 and citations omitted)). 26 FWS or any other agency subsequently committed would require the See 40 C.F.R. § 1502.4(c) (Environmental impact The determination of whether a 'critical Any site-specific actions to which the 30 1 preparation of a site-specific EIS even if the action were 2 undertaken pursuant to the Depredation Order -- if the 3 programmatic EIS is insufficient to address the environmental 4 impact of the site-specific action. 5 Hoffman, 132 F.3d 7, 13 (2d Cir. 1997) (citing Manatee County v. 6 Gorsuch, 554 F. Supp. 778 (M.D. Fla. 1982)). 7 Depredation Order itself does not commit FWS to any site-specific 8 control efforts, its adoption did not require any corresponding 9 site-specific EIS. 10 11 12 13 See Nat'l Audubon Society v. But because the The FWS did not violate NEPA in adopting the Depredation Order. CONCLUSION We have considered the plaintiffs' remaining arguments 14 and find them to be without merit. 15 judgment of the district court is affirmed. 31 For the foregoing reasons, the
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