Court Allows Taking of Double-Crested Cormorant

Fund for Animals v. Norton, 365 F. Supp. 2d 394 (S.D.N.Y. 2005).

Sabena Singh, 3L, South Texas College of Law

Editors Note: Although this is a case out of New York, the challenged agency action primarily affects aquaculture operations in the Mississippi Delta and the Southeastern U.S.

On March 28, 2005, the U.S. District Court for the Southern District of New York upheld the Fish and Wildlife Service’s “Public Resource Depredation Order” to manage the double-crested cormorant population.

Background
A water bird native to North America, the double-crested cormorant is a fish-eating bird that has been responsible for the loss of at least $25 million in annual catfish production, mainly in the Mississippi Delta. The FWS’s authority to regulate the double-crested cormorant arises from the Migratory Bird Treaty Act (MBTA), which implements bilateral conventions between the United States and Great Britain, Mexico, Japan, and Russia. Under the statute’s terms, protected birds may not be “taken” except as authorized by regulations implementing the MBTA.

After receiving many complaints about the double-crested cormorant’s harmful effects on aquaculture, the Fish and Wildlife Service (FWS) adopted the Aquaculture Depredation Order (ADO) in 1998. The ADO allowed landowners, operators, and tenants of aquaculture facilities to utilize firearms to take double-crested cormorants when the birds were found committing acts of depredation on the aquaculture stock. In the years following the adoption of the ADO, the FWS continued to receive complaints, as well as a large number of applications for cormorant depredation permits unrelated to aquaculture.

On March 17, 2003, the FWS published a proposed rule adopting the Public Resource Depredation Order (PRDO) after determining that population control was necessary where double-crested cormorants posed a substantial threat to public resources. Supporters of the depredation orders claimed that their resources had quite literally gone to the birds. The catfish industry, for example, claims cormorants eat over 49 million fingerlings each winter with a value of approximately $5 million.1

A final rule, issued on October 8, 2003, governed the taking of the double-crested cormorants on land and in the freshwater of 24 states.2 The rule provided that non-lethal control methods should first be attempted as a means of population control and limited lethal methods to egg oiling, egg and nest destruction, cervical dislocation, firearms, and CO2 asphyxiation. The FWS estimated that approximately eight percent of the bird’s total population of 2 million would be taken each year under the PRDO. Several animal rights organizations challenged the order asserting it violated treaty obligations and federal statutes.

Court’s Analysis
Plaintiffs asserted several main arguments. First, plaintiffs argued that the PRDO contradicted the terms of the Migratory Bird Treaty Act. The court found that there was no conflict between the PRDO and the language of the MBTA. The MBTA grants the Secretary of the Interior the power to “determine when, to what extent, if at all, and by what means” the taking of birds is permissible, and “to adopt suitable regulations permitting and governing the same.”3 The court found that the PRDO’s limited delegation of authority to state agencies and regional branches of the FWS does not depart from the MBTA’s language or intent. The court determined that the PRDO does not unduly relinquish federal power to the states, or vary from the national approach to bird management required by the MBTA. The PRDO requires agencies seeking to initiate control activities to first provide notice to the appropriate Regional Migratory Bird Permit Office and provide a detailed description of the proposed population control activity, including the location of the activity, a description of how the cormorant impacted public resources, and how many birds are likely to be taken.

Plaintiffs also argued that the PRDO was incompatible with the terms of the Treaty’s conventions. The court concluded that agency action should be evaluated for compliance under only those conventions that explicitly govern the disputed bird species, rather than under all four MBTA Conventions. The court’s evaluation of the PRDO, therefore, focused strictly on the U.S. - Mexico convention, the only convention that specifically protects the cormorant. Plaintiffs argued that the PRDO violated the U.S. - Mexico treaty because the treaty requires “the establishment of close seasons” for the taking of protected birds and the PRDO does not provide for close seasons. Here, the court was faced with two opposing interpretations. Defendants alleged that it was unnecessary for the PRDO to address a “close season” because the cormorant is not a game bird and the term “close season” specifically applies to game hunting. The plaintiffs maintained that the term “close season” should be read to apply to a period of time when the taking of any bird (game or non-game) is prohibited. The court held that in the absence of express guidance from the Convention or Congress, the FWS’s interpretation that the “close season” provision governs the taking of migratory game birds only was reasonable and the PRDO does not violate the U.S.- Mexico Convention.

Plaintiffs also claimed that FWS’s adoption of the PRDO was arbitrary and capricious. Before taking action, an agency must have examined the relevant data and articulated a satisfactory explanation for the action, including the reasons behind it in connection with the facts found. Plaintiffs alleged that the FWS did not point to facts in the administrative record proving that the double-crested cormorants adversely impacted public resources. The court found that there were differences of opinion among experts, but determined that the FWS considered all relevant evidence. “A factual finding [is] not arbitrary and capricious simply because conflicting evidence exist[s].”4 The court held that the FWS’s adoption of the PRDO was based on a significant fact record which contained substantial evidence of the double-crested cormorant’s effect on public resources.

The court further rejected plaintiffs’ parallel argument that the PRDO was arbitrary and capricious because it did not reflect the FWS’s stated goals. The plaintiffs claimed that the MBTA “requires the FWS to be as protective as possible of the birds,” and they argued that the MBTA always requires the adoption of the least intrusive alternative to regulating the cormorant.5 However, the court pointed to specific language in the U.S. - Mexico Convention that stated an intention to foster a “rational utilization” of protected birds, rather than to require the FWS “be as protective as possible” of a protected bird species.6

Plaintiffs also alleged that the FWS did not comply with the National Environmental Policy Act (NEPA) which requires every proposal for every major federal action “significantly affecting the quality of the human environment” to issue a detailed statement describing the project’s environmental impact. Contrary to the plaintiffs’ argument, the court found the Final Environmental Impact Statement included an in-depth analysis of all alternatives considered by the Service and illustrated that its actions were based on sufficient facts. For these reasons, the court held that the FWS’s stated objectives and listed alternatives adequately satisfied the standards of NEPA.

Conclusion
The court dismissed the plaintiffs’ remaining arguments related to the Endangered Species Act and the FWS MBTA implementing regulations, found for the defendants, and authorized the Fish and Wildlife Service’s PRDO as an appropriate vehicle for controlling the double-crested cormorant population in 24 states.

Endnotes
1. Fund for Animals v. Norton, 365 F. Supp. 2d 394, 417 (S.D.N.Y. 2005).
2. The PRDO is applicable in Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, New York, North Carolina, Ohio,
3. Fund for Animals, 365 F. Supp. 2d at 410 (citing 16 U.S.C. § 704(a)).
4. Id. at 418
5. Id. at 419.
6. Id. at 420.