Court
Enjoins Mute Swan Cull
Fund
For Animals v. Norton, 281 F. Supp. 2d 209 (D.D.C. 2003).
Shannon
McGhee, 2L1
The U.S. District Court for the District of Columbia determined there
was substantial evidence to support a claim that the issuance of a depredation
permit by the Fish and Wildlife Service (FWS) to the State of Maryland
for the killing of 525 mute swans failed to meet requirements of the
Migratory Bird Treaty Act (MBTA) and National Environmental Policy Act
(NEPA) and thereby justified a preliminary injunction.
Background
The Atlantic Flyways, which is comprised of seventeen states
along the Eastern Seaboard of the United States, is home to approximately
14,000 non-native mute swans. Under MBTA regulations, a depredation
permit must be sought from FWS in order to legally pursue, hunt,
shoot, wound, kill, trap, capture, or collect mute swans.2
Before any depredation permit is issued, FWS, under NEPA regulations,
must assess all of the significant impacts a proposed action might have
on the human environment.
However, through
a categorical exclusion3 under NEPA, FWS
issued Maryland a depredation permit without performing any type of
environmental assessment. The state of Maryland was granted a permit
authorizing the killing of up to 1,500 mute swans as part of a
comprehensive mute swan management plan that would be implemented
in 2003. The Fund for Animals, a wildlife protection organization, filed
suit challenging Marylands permit. However, Maryland promised
to voluntarily surrender its permit pending the preparation of an Environmental
Assessment (EA) by FWS and the suit was dropped. On July 2, 2003, the
FWS registered a Draft Environmental Assessment on the Management of
Mute Swans in the Atlantic Flyway (Draft EA) for review, setting July
16, 2003 as the deadline for public comments.
After reviewing
public comments, FWS issued a Final EA on August 7, 2003 concluding
that mute swans were causing critical environmental damage to the underwater
plant communities of Chesapeake Bay by consuming up to eight pounds
per day of Submerged Aquatic Vegetation (SAV).4 The
Final EA further explained the taking of mute swans as a
method of minimizing such environmental damage would have no significant
impact on the human environment and, therefore, an Environmental
Impact Statement (EIS) was unnecessary. Maryland then renewed its depredation
permit for the taking of 525 mute swans. Shortly thereafter,
the Fund for Animals commenced an action asking the Court to enjoin
the state of Marylands renewed depredation permit.
Standard
of Review
On a motion for preliminary injunction, plaintiffs must demonstrate
(1) a substantial likelihood of success on the merits, (2) irreparable
injury if the injunction is not granted, (3) that there will be no substantial
injury to other interested parties, and (4) that the public interest
would be served by the injunction.5 No one factor,
however is determinative.
Irreparable
Harm
The Fund for Animals argued if all of the depredation permits from the
Final EA were considered in the aggregate, irreparable harm to their
aesthetic interests to view, interact with, study and appreciate mute
swans would ensue because 86 percent of the mute swans in Maryland and
67 percent of the current mute swans in the Atlantic Flyway would be
at risk of being killed.6 Plaintiffs also contended irreparable harm
from the violation of their procedural rights under NEPA. The Maryland
Department of Natural Resources (MDNR) refuted these claims, by arguing
that: (1) Maryland or any states maximum take limits
are adjusted upward or downward on an individual and annual basis, (2)
plaintiffs failed to allege irreparable harm from the issuance of permits
to other states in the Atlantic Flyway, and (3) plaintiffs presented
no evidence of harm from the past killing of 1,700 mute swans in Maryland.
In addition, MDNR contended the taking of 525 swans, a mere
14.5 percent reduction of the current mute swan population in Maryland
from remote areas where plaintiffs neither travel nor live, would result
in minimal or no irreparable harm.
The court found
MDNRs arguments unpersuasive, stating that the plaintiffs
claim for irreparable harm was pursuant to the particular swans located
in Maryland and not all swans in the Atlantic Flyway. Furthermore, the
plaintiffs were claiming they would suffer not from the past killing
of mute swans, but from the additional taking of 525 mute swans. The
court concluded that, although a NEPA violation standing alone was insufficient
to support a preliminary injunction, when that violation was combined
with the plaintiffs other claim of aesthetic irreparable harm,
plaintiffs adequately established the existence of irreparable harm
absent a preliminary injunction.
Substantial
Harm to Other Parties
MDNR further argued even if the plaintiffs demonstrated irreparable
harm, the Chesapeake Bay and native wildlife would suffer greater harm
by the daily degradation caused from the present mute swan population
and its progeny. The court disagreed, noting the current 9.2 percent
mute swan growth rate was easily manageable even if the agencys
course of action was delayed a year. MDNR officials explained that the
supposed 10 percent consumption of SAV biomass by mute swans has a negligible
bay-wide effect; thus the court held that an injunction delaying the
taking of swans a few months to ensure the vindication of
the publics interest would surely not result in irreparable harm
to the Chesapeake Bay. Finally, the court found MDNRs immediate
need for the taking of 525 mute swans to be a mere assertion that it
would be easier to take swans now than later.
Likelihood
of Success on the Merits
NEPA
The Fund for Animals argued that the FWS finding of no significant impact
(FONSI) and its decision not to proceed with an EIS to further evaluate
the environmental impacts of depredation permits were arbitrary and
capricious. Under the Administrative Procedure Act (APA), FWS actions
may only be overturned if they were arbitrary, capricious, or an abuse
of discretion. Under this standard of review courts examine (1)
whether the agency took a hard look at the problem; (2)
whether the agency identified the relevant areas of environmental concern;
(3) as to the problems studied and identified, whether the agency made
a convincing case that the impact was insignificant; and (4) if there
was an impact of true significance, whether the agency convincingly
established that changes in the project sufficiently reduced it to a
minimum.7 MDNR contended that by describing
the proposed action, examining reasonable alternatives, considering
environmental impacts, and providing a list of individuals and agencies
consulted in the Final EA all of NEPAs requirements were
met.
The court held the plaintiffs demonstrated a likelihood of success on
the merits for their claim that FWS failed to involve the public to
the greatest extent possible in taking a hard look
at alternatives for managing Marylands mute swan population. The
court reasoned that the public was given a total of only nine working
days in the middle of the summer to review and submit comments on a
Draft EA that lacked specific information, e.g., which local environments
would be affected by the proposed action. The court noted that describing
the location of the action as covering 6000 square miles and 15
of 24 counties within the state, did not translate into any greater
specificity as to the effects on local mute swan populations.8 In addition, the court pointed out, the FWS assertion that it received
and reviewed thousands of comments from 13 state wildlife
agencies, 53 organizations, and 2,620 individuals in such a short period
of time between July 16 and the July 31, 2003 deadline, as weighing
more heavily for plaintiffs, i.e., FWS did not take the appropriate
hard look.9
The court also found FWSs post-hoc rationalization of issuing
depredation permits prior to a Final EA unconvincing, stating that MDNRs
assertion that FWS actions are entitled to a presumption of regularity
does not protect the agency from its obligation to perform a thorough,
probing, in-depth review of the agencys proposed course
of action.
The Fund for Animals
also successfully argued that although the taking of mute
swans may have a minimal environmental impact on the entire state, FWS
failed to evaluate the significant impacts, whether adverse or beneficial,
at the local level. Additionally, the court reasoned that the uncertainty
as to the impact of a proposed action on a local population of a species,
even where all parties acknowledge that the action will have little
or no effect on broader populations, is a basis for a finding
that there will be a significant impact and setting aside a FONSI
[finding of no significant impact].10 Therefore,
plaintiffs have shown a likelihood of success on the merits that the
FWS decision to issue a FONSI was arbitrary and capricious.
The court found
FWS had established a sufficient nexus between identifying the degradation
of SAV by mute swans and its proposed action to correct it by reducing
the mute swan population. Moreover, the court was not convinced that
the FWS issuance of permits had created a precedent since the permits
contemplated by the Final EA are reevaluated on an annual and individual
basis. Similarly, the court ruled the plaintiffs failed to identify
any scientific controversy of the effects of killing mute swans throughout
Maryland or the Atlantic Flyway region. Nevertheless, the
court found the plaintiffs raised substantial questions
as to the existence of at least two significant factors, and therefore
demonstrated a likelihood of success on the merits.
MBTA
MBTA regulations stipulate that migratory birds may only be killed pursuant
to a depredation permit which states the location where
the requested permitted activity is to be conducted, as well as
a description of the area where depredations are occurring,
the nature of the crops or other interests being injured,
and the extent of such injury. 11 The Fund for Animals alleged that the FWSs failure to ensure MDNR
met MBTA requirements or to explain how such requirements were satisfied
prior to the issuance of Marylands depredation permit amounted
to arbitrary and capricious agency action.
The court held that
although MDNR specified which public lands would be rendered swan
free as well as provided a generalized description of the types
of areas where removal activities would take place, MDNR
failed to specify the localized and specific types of damage mute swans
cause in those areas, nor did MDNR indicate the number of swans planned
to be removed from each area. Furthermore, MDNR only chose the depredation
permit to cover areas where mute swans are most likely to be found,
not where the greatest extent of SAV damage is occurring. Finally, even
though defendants assert an equally strong public interest in preservation
and restoration of the Chesapeake Bay, they ultimately fell short of
meeting the burden of establishing why their long-term goal could not
be accomplished in the future. As a result, the court was persuaded
that plaintiffs had a substantial case on the merits, that
defendants failed to comply with MBTA standards, and therefore plaintiffs
were entitled to injunctive relief.
Conclusion
The district court ruled that FWS failed to meet NEPA and MBTA requirements
in its issuance of a depredation permit to the state of Maryland for
the taking of 525 mute swans. The Court preliminarily enjoined MDNR
from further acting on its depredation permit. (At the press time, according
to Dennis OBrien, a reporter for The Baltimore Sun, nothing has
happened since this decision.)
Endnotes
1. Shannon is a second-year law student at the University
of Georgia School of Law in Athens, Georgia.
2. 16 U.S.C. § 703 (2003).
3. Agencies may determine that certain actions qualify
for a categorical exclusion from the requirements of NEPA
if they find that the actions do not individually or cumulatively have
a significant effect on the human environment. See 40 C.F.R. §
1508.4; 40 C.F.R. § 1507.3 (2003).
4. Fund for Animals v. Norton, 281 F. Supp. 2d
209, 215 (D.D.C. 2003).
5. Id. at 219.
6. Id.
7. Town of Cave Creek, Arizona v. Fedl Aviation
Assn, 325 F.3d 320, 327 (D.C. Cir. 2003); Sierra Club v.
United States Dept of Transp., 753 F.2d 120, 126 (D.C. Cir.
1985).
8. Norton, 281 F. Supp. 2d at 235-26.
9. Id. at 227.
10. Id. at 234.
11. 50 C.F.R. § 13.12(a)(2); 50 C.F.R. §§
21.41(b)(1)-(3) (2003).
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