     05-2603-cv
     Fund for Animals v. Kempthorne



1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                August Term, 2007

4    (Argued: November 9, 2007                   Decided: August 14, 2008)
5
6                              Docket No. 05-2603-cv

7                    -------------------------------------

 8      THE FUND FOR ANIMALS, HUMANE SOCIETY OF THE UNITED STATES,
 9      DEFENDERS OF WILDLIFE, ANIMAL RIGHTS FOUNDATION OF FLORIDA,
10    DONALD FEARE, GUSTAV W. VERDERBER, JULIE BAKER, KRISTI GHOLSON,
11                 COLLETTE ADKINS GIESE, MARIAN PROBST,

12                            Plaintiffs-Appellants,

13                                     - v -

14    DIRK KEMPTHORNE, Secretary of the Interior, H. DALE HALL, Fish
15   and Wildlife Service Director, CHUCK CONNER, Acting Secretary of
16         Agriculture, and CINDY SMITH, Administrator of the
17              Animal and Plant Health Inspection Service,
18
19                             Defendants-Appellees.

20                   -------------------------------------

21   Before:     McLAUGHLIN, CABRANES, and SACK, Circuit Judges.

22               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                             KIMBERLY D. OCKENE, Meyer Glitzenstein &
2                             Crystal (Howard M. Crystal, Eric R.
3                             Glitzenstein, Meyer Glitzenstein &
4                             Crystal, Washington, DC; and Leonard D.
5                             Egert, Amy Trakinski, Egert
6                             & Trakinski, New York, NY, of counsel),
7                             Washington, DC, for Plaintiffs-
8                             Appellants.

 9                            SARAH S. NORMAND, Assistant United
10                            States Attorney (Michael J. Garcia,
11                            United States Attorney for the Southern
12                            District of New York, and Sara L.
13                            Shudofsky, Assistant United States
14                            Attorney, of counsel), New York, NY, for
15                            Defendants-Appellees.

16   SACK, Circuit Judge:

17             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.   We consider on appeal

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                              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.   These birds are not protected by the Endangered Species

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.   The Fish and Wildlife

6    Service ("FWS") has been delegated primary responsibility for

7    regulating migratory birds, including cormorants.   See Migratory

8    Bird Permits; Regulations for Double-Crested Cormorant

9    Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003).

10              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."   Compl. ¶ 1.

20              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.    In

25   order to create a "uniform system" for migratory birds that

26   passed through their territories, the United States in 1916

                                      3
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.   Each of these treaties lists the birds that are

20   protected under its terms.   Only the Mexico Convention, as

21   amended in 1972, explicitly applies to cormorants.

22             The original 1936 Mexico Convention provides, in

23   pertinent part:

24             ARTICLE I. In order that the species may not
25             be exterminated, the [United States and
26             Mexico] declare that it is right and proper
27             to protect birds denominated as migratory . .
28             . by means of adequate methods which will
29             permit, in so far as the respective high
                                     4
1              contracting parties may see fit, the
2              utilization of said birds rationally for
3              purposes of sport, food, commerce and
4              industry.

5              ARTICLE II. The [United States and Mexico]
6              agree to establish laws, regulations and
7              provisions to satisfy the need set forth in
8              the preceding Article, including:

 9                    A) The establishment of close seasons,
10                    which will prohibit in certain periods
11                    of the year the taking of migratory
12                    birds . . . .
13                    . . .
14                    C) The limitation of their hunting to
15                    four months in each year, as a maximum,
16                    under permits issued by the respective
17                    authorities in each case.


18                    D) The establishment of a close season
19                    for wild ducks . . . .
20                    . . .
21             ARTICLE IV. . . . [T]he following birds shall
22             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.   See Agreement between the Government of the

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").   It is undisputed for

34   present purposes that the cormorant is a non-game bird.

                                       5
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.    The statute makes it "unlawful at any time,

5    by any means or in any manner," inter alia, to "take" birds

6    listed in the relevant treaties.   16 U.S.C. § 703(a).   To "take"

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.   50 C.F.R. § 10.12.

10              The MBTA also delegates authority to the United States

11   Secretary of the Interior,

12              from time to time, having due regard to the
13              zones of temperature and to the distribution,
14              abundance, economic value, breeding habits,
15              and times and lines of migratory flight of
16              such birds, to determine when, to what
17              extent, if at all, and by what means, it is
18              compatible with the terms of the conventions
19              to allow hunting, taking, capture, killing,
20              possession, sale, purchase, shipment,
21              transportation, carriage, or export of any
22              such bird, or any part, nest, or egg thereof,
23              and to adopt suitable regulations permitting
24              and governing the same, in accordance with
25              such determinations, which regulations shall
26              become effective when approved by the
27              President.

28   16 U.S.C. § 704.   This authority has been subdelegated by the

29   Secretary to the FWS.   See 50 C.F.R. § 10.1.

30              When migratory birds converge in large numbers, they

31   may consume large quantities of local plants, fish, or other

32   species.   In doing so, they may harm commercial activity

33   dependent on those species.   For example, as the cormorant

34   population has grown over the past several decades, the FWS has
                                     6
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.   See 50 C.F.R. § 21.41.

9    Applications for such permits must include, inter alia, "(1) A

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."   Id.   Permittees are

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.    Id.

17             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.   Such an order must state explicitly that it

24   is an "emergency measure designed to relieve depredations only"

          1
             "[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.    Id.

3                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.    See 50 C.F.R. §§ 21.43-46.   The rules referred to above

7    were all in effect prior to and at the time of the FWS's

8    promulgation of the orders at issue in this case.

9                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.    This provision was amended when the FWS adopted the

18   Depredation Order at issue in this appeal.

19               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").          The team

5    evaluated methods of managing the cormorant population.          In

6    December 2001, it released a Draft EIS ("DEIS") for public

7    comment.   Notice of Availability; Draft Environmental Impact

8    Statement on Double-Crested Cormorant Management, 66 Fed. Reg.

9    60,218 (Dec. 3, 2001).   The DEIS presented "six management

10   alternatives to address biological and socioeconomic resource

11   conflicts associated with cormorants."       Id.    They included: 1) no

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.         Id.   From these

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."   Id.

22              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."       U.S. Fish and Wildlife

                                        9
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).      These land management agencies

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."    Id. at 18.   The agencies would

9    be required to keep records of all activities and report this

10   data to the FWS annually.   Id. at 19.    The FWS reserved the

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 or 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.   Id.

17             In March 2003, the FWS published a proposed rule

18   reflecting slight modifications of the proposed depredation order

19   as described in the DEIS.   Migratory Bird Permits; Regulations

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

                                       10
1    saltwater), and allowed more methods for taking cormorants.     Id.

2    at 12,654.   It also noted that "[w]hile the [FWS] has the primary

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."   Id.

8               The FWS published its final EIS in August 2003 and

9    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).   The Final Rule established the Depredation Order, 50

15   C.F.R. § 21.48, and amended the Aquaculture Depredation Order, 50

16   C.F.R. § 21.47.

17              Before issuing the order, the FWS reviewed studies

18   related to the growth, breeding, and travel patterns of

19   cormorants in North America.   Based on what it considered to be

20   the available science, the agency concluded that:

21              (1) [Cormorants] are generalist predators
22              whose diet varies considerably between
23              seasons and locations and tends to reflect
24              fish species composition; (2) The present
25              composition of cormorant diet appears to have
26              been strongly influenced by human-induced
27              changes in the natural balance of fish
28              stocks; (3) "Impact" can occur at different
29              scales, such that ecological effects on fish
30              populations are not necessarily the same as
31              effects on recreational or commercial
32              catches, or vice versa; (4) Cormorant impact
                                      11
1              is generally most significant in artificial,
2              highly managed situations; and (5) Because
3              environmental and other conditions vary
4              locally, the degree of conflicts with
5              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."   50 C.F.R. § 21.48(c)(1).   The rule requires

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).    Agencies acting pursuant to the Depredation

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,"

                                      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."    Id. § 21.48(d)(9)(ii).    Agencies are

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

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.    The parties all eventually moved for summary

21   judgment.

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."      Fund

                                      13
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)).    To the extent that the MBTA

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

10   the manner in which cormorants may be taken.    Id. at 410-11.   The

11   district court also concluded that the Depredation Order does not

12   conflict with the Mexico Convention.   Although the 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 game birds, which the

16   parties agree do not include the cormorant.    Id. at 412-14.

17             The district court rejected the plaintiffs' argument

18   that the defendants' adoption of the Depredation Order was

19   arbitrary and capricious, and contrary to the APA, for it found

20   that the record adequately demonstrates that: 1) the double-

21   crested cormorant adversely affects public resources; 2) the

22   Depredation Order is a reasonable method of effectuating the

23   goals of the MBTA; and 3) the Depredation Order does not conflict

24   with the FWS's internal regulations.   Id. at 414-23.   The court

25   also determined that the defendants had complied with the

26   requirements of NEPA by issuing the final EIS.    Id. at 427-34.

                                    14
1              The district court therefore granted the defendants'

2    motion for summary judgment, dismissing all of the plaintiffs'

3    claims.

4              The plaintiffs appeal the judgment of the district

5    court, but only as to some of the issues it decided.2

6                                DISCUSSION

7              I.   Standard of Review

8              "We review de novo a district court's ruling on

9    cross-motions for summary judgment, in each case construing the

10   evidence in the light most favorable to the non-moving party."

11   White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d

12   163, 167 (2d Cir. 2007).   Our review of the Depredation Order

13   under the APA, however, is limited.   We may reverse an agency's

14   informal rulemaking if it was "arbitrary, capricious, an abuse of

15   discretion, or otherwise not in accordance with law."   5 U.S.C. §

16   706(2)(A); see also, e.g., Nat'l Black Media Coal. v. FCC, 822

17   F.2d 277, 280 (2d Cir. 1987).   An agency's factual findings must

18   be supported by "substantial evidence," i.e., "less than a

19   preponderance, but more than a scintilla."   Cellular Tel. Co. v.

20   Town of Oyster Bay, 166 F.3d 490, 493-94 (2d Cir. 1999).

21   Substantial evidence "means such relevant evidence as a

22   reasonable mind might accept as adequate to support a

23   conclusion."   Universal Camera Corp. v. NLRB, 340 U.S. 474, 477



          2
             The plaintiffs have declined to challenge on appeal the
     validity of the Aquaculture Depredation Order, 50 C.F.R. § 21.47,
     or the question whether the Depredation Order violates the
     Endangered Species Act, 16 U.S.C. § 1532 et seq.
                                     15
1    (1951) (internal quotation marks and citation omitted).     "The

2    reviewing court must take into account contradictory evidence in

3    the record, but the possibility of drawing two inconsistent

4    conclusions from the evidence does not prevent an administrative

5    agency's finding from being supported by substantial evidence."

6    Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 523

7    (1981) (citations and internal quotation marks omitted).     When an

8    agency makes a decision in the face of disputed technical facts,

9    "[a] court must be reluctant to reverse results supported

10   by . . . a weight of considered and carefully articulated expert

11   opinion."    Fed. Power Comm'n v. Florida Power & Light Co., 404

12   U.S. 453, 463 (1972).

13               In evaluating agency reasoning, we must be satisfied

14   that the agency examined the relevant data and established a

15   "rational connection between the facts found and the choice

16   made."    Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.

17   Co., 463 U.S. 29, 43 (1983) (citation and internal quotation

18   marks omitted).

19               The agency's action should only be set aside
20               [if] it 'relied on factors which Congress has
21               not intended it to consider, entirely failed
22               to consider an important aspect of the
23               problem, offered an explanation for its
24               decision that runs counter to the evidence
25               before the agency, or is so implausible that
26               it could not be ascribed to a difference in
27               view or the products of expertise.'

28   Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir. 2000)

29   (quoting State Farm, 463 U.S. at 43), cert. denied, 531 U.S. 1070

30   (2001).

                                      16
1              II.   Whether the Depredation Order Violates the MBTA

2              The plaintiffs argue that by delegating "management

3    authority" to the states and other agencies, the Depredation

4    Order violates the MBTA's requirement that any killings of

5    protected birds be specifically authorized by the FWS.   We agree

6    with the district court, however, that the discretion granted to

7    these third parties is limited and subject to adequate oversight

8    by the FWS, and that the Depredation Order therefore does not

9    contravene the MBTA.

10             Delegation of statutory responsibility by federal

11   agencies and officers to outside parties is problematic because

12   "lines of accountability may blur, undermining an important

13   democratic check on government decision-making," U.S. Telecom

14   Ass'n v. FCC, 359 F.3d 554, 565 (D.C. Cir.), cert. denied, 543

15   U.S. 925 (2004), and because outside parties, whether private or

16   sovereign, might not "share the agency's national vision and

17   perspective," id. at 566 (internal quotation marks omitted).    We

18   agree with the D.C. Circuit that, absent statutory authorization,

19   such delegation is impermissible.    Id.

20             The MBTA authorizes the Secretary of the Interior "to

21   determine when, to what extent, if at all, and by what means"

22   takings may occur, 16 U.S.C. § 704(a), and "to adopt suitable

23   regulations permitting and governing the same," id., but the

24   statute does not specifically provide for this authority to be

25   delegated to third parties.   Because any unauthorized delegation

26   of this authority beyond the agency would be impermissible, our

                                     17
1    inquiry focuses on whether the Depredation Order is, in fact,

2    such a delegation.

3              An agency delegates its authority when it shifts to

4    another party "almost the entire determination of whether a

5    specific statutory requirement . . . has been satisfied," U.S.

6    Telecom, 359 F.3d at 567, or where the agency abdicates its

7    "final reviewing authority," Nat'l Park & Conservation Ass'n v.

8    Stanton, 54 F. Supp. 2d 7, 19 (D.D.C. 1999).     Agencies may seek

9    advice and policy recommendations from outside parties, but they

10   may not "'rubber-stamp' decisions made by others under the guise

11   of seeking their 'advice.'"   U.S. Telecom, 359 F.3d at 568.      If

12   all it reserves for itself is "the extreme remedy of totally

13   terminating the [delegation agreement]," Nat'l Park, 54 F. Supp.

14   2d at 20, an agency abdicates its "final reviewing authority,"

15   id. at 19.

16             In the case at bar, the authority delegated by Congress

17   to the FWS under the MBTA bears little resemblance to the far

18   narrower band of discretion afforded to those acting under the

19   Depredation Order.   The MBTA requires the Secretary "to determine

20   when, to what extent, if at all, and by what means, it is

21   compatible with the terms of the conventions" to permit takings

22   and killings of migratory birds.     By contrast, third parties

23   acting pursuant to the Depredation Order are limited to takings

24   of cormorants, and cormorants only, and even then, solely "to

25   prevent depredations on the public resources of fish . . . ,

26   wildlife, plants, and their habitats."     50 C.F.R. § 21.48(c).

                                     18
1    Even if we accept the plaintiffs' warning that the term

2    "depredation" is not explicitly defined by the FWS and could

3    include birds engaging in the natural behavior of eating fish

4    with no evidence of harm to a fish population overall, the

5    Depredation Order nonetheless restricts the species, locations,

6    and means by which takings in response to such depredations could

7    occur, thereby restricting the discretion that may be exercised

8    by third   parties acting under the Order.

9               The Depredation Order therefore does not represent a

10   delegation of authority but is, instead, a permissible "grant of

11   permission [conditioned] on the decision of another entity, such

12   as a state, local, or tribal government, . . . [with] a

13   reasonable connection between the outside entity's decision and

14   the federal agency's determination."   U.S. Telecom, 359 F.3d at

15   567.   By adopting a rule that provides local agencies discretion

16   to determine what constitutes a "depredation" within a localized

17   context, the FWS was exercising its "broad permitting authority"

18   while incorporating "obviously relevant local concern[s] as . . .

19   element[s] of its decision process."   Id.

20              As a practical matter, of course, by issuing the

21   Depredation Order, the FWS has limited its ability to regulate in

22   advance those takings that are authorized by the Order.   In this

23   regard, the Depredation Order differs from the permit and

24   rulemaking system for handling requests for depredation permits

25   set forth at 50 C.F.R. §§ 21.41-21.42, which prohibits

26   depredation control efforts unless the FWS first affirmatively

                                     19
1    issues a permit or order, and which requires the FWS to consider

2    beforehand evidence of damage caused or about to be caused by

3    migratory birds.   There is, however, no statutory requirement

4    that the FWS provide prior authorization in the form of a permit

5    for specific takings of migratory birds.   The MBTA mandates only

6    "suitable regulations permitting and governing" takings.   16

7    U.S.C. § 704(a).   The regulations restricting the taking of

8    migratory birds, even in the absence of an advance permitting

9    scheme, satisfy this statutory requirement.

10             It is also worth noting that the FWS does retain some

11   authority to regulate takings under the Depredation Order before

12   they occur.   For example, the FWS must be notified 30 days in

13   advance of depredation control efforts that would "kill more than

14   10 percent of the double-crested cormorants in a breeding colony"

15   and may prevent any such efforts with simple notification.     50

16   C.F.R. § 21.48(d)(9)(i)-(ii).   It may also suspend or revoke the

17   authority of third parties to act pursuant to the Depredation

18   Order if they do not adhere to the Order's "purpose, terms, and

19   conditions" or if the "long-term sustainability of double-crested

20   cormorant populations is threatened."   Id. § 21.48(d)(13).

21   Finally, the Depredation Order requires third parties acting

22   under it to submit annual reports detailing their activities.

23   The reports are required to include, among other things, an

24   assessment of the effectiveness of control efforts, a description

25   of efforts made to minimize incidental takings, and a tally of

26   the number of cormorants and other migratory birds killed.

                                     20
1    Id. § 21.48(d)(10).     In light of this oversight power and

2    monitoring authority, the FWS is amply equipped to monitor the

3    nationwide status of cormorant populations and to respond to

4    long-term effects on the species.

5                We conclude that the Depredation Order does not violate

6    the MBTA.

7                III.   Whether the Depredation Order Conflicts with
8                       Treaties to Which the United States Is a Party

9                Article II(A) of the Mexico Convention -- the only

10   treaty that refers specifically to cormorants -- requires "[t]he

11   establishment of close seasons, which will prohibit in certain

12   periods of the year the taking of migratory birds . . . ."

13   Mexico Convention, art. II, 50 Stat. at 1312.     The plaintiffs

14   interpret this provision to apply to all migratory birds --

15   whether or not they are game birds.     In their view, the

16   Depredation Order's failure to provide for a close season renders

17   the order contrary to the treaty and therefore in violation of

18   the MBTA.    See 16 U.S.C. § 704 (providing that the MBTA is

19   "[s]ubject to the provisions [of] and [designed] in order to

20   carry out the purposes of the conventions").     We think that the

21   Mexico Convention itself is ambiguous regarding the question of

22   whether the "close seasons" requirement applies to all migratory

23   birds.   We therefore defer to the FWS's reasonable view that the

24   Convention requires a close season only for game birds, which the

25   parties agree do not include the cormorant.

26               "Respect is ordinarily due the reasonable views of the

27   Executive Branch concerning the meaning of an international
                                     21
1    treaty."   El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S.

2    155, 168 (1999); see also Sumitomo Shoji America, Inc. v.

3    Avagliano, 457 U.S. 176, 184-85 (1982) ("Although not conclusive,

4    the meaning attributed to treaty provisions by the Government

5    agencies charged with their negotiation and enforcement is

6    entitled to great weight.").

7               We will not create ambiguity where none exists, but the

8    text and structure of the Mexico Convention do not express a

9    clear intent regarding the need for a close season for all

10   migratory birds, as opposed to game birds –- a category that does

11   not include cormorants.   Article II(A) refers to "the taking of

12   migratory birds," not the taking of "all migratory birds."    That

13   section, moreover, creates an exception for "private game farms."

14   And Article II(C) specifies the minimum length of a close season

15   when "their hunting" would be limited, implicitly referring back

16   to the "migratory birds" referenced in subpart (A).   These

17   provisions addressing hunting can reasonably be read to suggest

18   that the "migratory birds" at issue in Article II(A) include only

19   those that are hunted, i.e., game birds.

20              The distinction drawn in Article IV between game birds

21   and non-game birds does little to clarify the meaning of Article

22   II(A) in this regard.   The fact that the states parties to the

23   treaty made this distinction makes it clear enough that they were

24   aware of the differences between the two.   They therefore could

25   have specified "migratory game birds" at Article II(A) had they

26   meant that the requirement of close seasons applied only to game

                                     22
1    birds.    But it is also possible that they viewed this distinction

2    as implied by the kinds of protection described in Article II,

3    some of which clearly apply only to game birds, and some of which

4    do not.

5               The plaintiffs suggest that the references to hunting

6    at subpart (C), and to game farms at subpart (A) restrict the

7    meaning of subpart (A)'s "migratory birds" only for those

8    specific purposes.   The "close season" requirement remains

9    applicable to all migratory birds.   Even if we accept this

10   argument, however, there is nothing in the text or structure of

11   Article II that would foreclose the defendants' contrary

12   interpretation.   The plaintiffs' interpretation of Article II(A)

13   is not unreasonable, but the treaty does not unambiguously

14   require such an interpretation.   The agency's view -- that

15   Article II(A) refers only to migratory game birds -- is also a

16   reasonable one, and we therefore are required to accept it.3

17              IV.   Whether the FWS Acted Arbitrarily or Capriciously
18                    in Adopting the Depredation Order




          3
             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,
     provided in response to questions posed by the Court of Appeals
     for the First Circuit).
                                     23
1              The plaintiffs contend that the FWS acted arbitrarily

2    and capriciously in adopting the Depredation Order.     In their

3    view, the Order "authoriz[ed] a full-scale assault on the

4    protected birds" in the absence of evidence that cormorants were

5    having a widespread impact.    Appellants' Br. at 46.   We disagree.

6              Although the Depredation Order applies to about half

7    the states, depredation control efforts pursuant to the

8    Depredation Order may take place only where cormorants are found

9    "committing or about to commit" depredations and under specified

10   conditions.    See 50 C.F.R. § 21.48(c)(1).   By so limiting control

11   efforts, the Depredation Order provides a "rational connection

12   between the facts found and the choice made" and is therefore

13   neither arbitrary nor capricious.      See State Farm, 463 U.S. at 43

14   (internal quotation marks omitted).

15             As the plaintiffs observe, the FWS does not provide

16   evidence that cormorants have a "widespread impact" on public

17   resources.    Appellants' Br. at 46.   But it is the FWS's position

18   that the agency was not required to make any such finding to

19   support the Depredation Order.    In its review of studies

20   addressing the impact of cormorants on various types of public

21   resources, the FWS noted that "negative impacts are typically

22   very site-specific and thus [cormorant]-fish conflicts are most

23   likely to occur on a localized scale," Final Rule, 68 Fed. Reg.

24   at 58,025; that "[w]hile large-scale impacts on regional or

25   continental bird populations have not been documented" there was

26   evidence that other bird species could "be negatively impacted by

                                      24
1    [cormorants] at a site-specific level," id.; and that cormorants

2    caused significant financial loss at aquaculture facilities and

3    fish hatcheries, which are localized by their nature, id. at

4    58,026.   Studies reviewed by the FWS also concluded that

5    cormorant predation had adverse impacts in states including

6    Wyoming, New York, and states in the Upper Midwest, South, and

7    Mississippi Delta region, whether in the form of cormorant diets

8    skewed heavily towards fish, or economic losses due to cormorant

9    predation at aquaculture or hatchery facilities.    As the FWS

10   itself acknowledged, these studies did not provide a full picture

11   of the interaction between cormorants and local resources.    The

12   FWS recognized the "need for more information about [cormorants]

13   and their impacts on resources across a variety of ecological

14   settings" and agreed with critics of the Depredation Order that

15   "better information on population status and trends is

16   desirable."   Id. at 58,023.   What the FWS did establish, though,

17   was that in a large number of states, cormorants were responsible

18   for localized, site-specific harm to public resources, even if

19   not on a state-wide basis.

20              The remaining question, then, is whether the

21   Depredation Order is a reasonable response to this evidence of

22   harm.   In light of the limited discretion afforded by the

23   Depredation Order, we conclude that it is.   The express intent of

24   the Order is "to enhance the ability of resource agencies to deal

25   with immediate, localized [cormorant] damages."    Id.   And that is

26   precisely what the Depredation Order does.   It applies only to

                                      25
1    the public resources of affected states, 50 C.F.R. § 21.48(b),

2    (c)(1), and takings are permitted only of those cormorants

3    "committing or about to commit . . . depredations," id. §

4    21.48(c)(1).   All takings must be recorded and detailed in annual

5    reports.   The FWS must be notified in advance of activity that

6    would result in the taking of more than 10 percent of a breeding

7    colony.    The FWS may also prevent such activity if it is deemed a

8    threat to the long-term sustainability of cormorants.    These

9    restrictions adequately limit depredation control activities

10   under the Depredation Order to address the types of harm the FWS

11   specifically found are caused by cormorants.    Although, as

12   discussed, there may be some uncertainty in the meaning of

13   "depredation," the discretion provided by the Depredation Order

14   to local agencies to determine when depredations occur is not so

15   expansive that it would render the order arbitrary and

16   capricious.

17              The plaintiffs also argue that instead of the

18   Depredation Order, the FWS should have adopted a "less drastic

19   liberalized permitting scheme" similar to some of the

20   alternatives considered by the FWS.    Appellants' Br. at 49.

21   Perhaps such an approach would be a better response than the

22   Depredation Order in providing local agencies with some degree of

23   flexibility, addressing actual cormorant damage, and avoiding

24   unnecessary takings of cormorants.    However, the FWS has

25   articulated adequate explanations for its choice not to adopt

26   this, or another, alternative approach, preferring to grant local

                                      26
1     agencies a degree of flexibility that the FWS thinks will more

2     "adequately address resource damages caused by [cormorants]" than

3     permit-based approaches.    Final Rule, 68 Fed. Reg. at 58,034.   It

4     is, of course, typically the case that there are several

5     different possible responses to a given problem, more than one of

6     which may be rational.    In this case, the Depredation Order

7     represents one rational response to the problem of cormorant

8     depredation based on evidence available to the FWS, and the FWS

9     has explained its reasons for choosing one rational response over

10    others.   This is the limit of our inquiry, see Citizens to

11    Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971),

12    and we therefore conclude that the FWS complied with the APA in

13    adopting the Depredation Order.

14               V.   Whether the FWS Complied with NEPA in Adopting
15                    the Depredation Order

16              In order to adopt the Depredation Order, the FWS was

17   required by NEPA to prepare an EIS that would "provide full and

18   fair discussion of significant environmental impacts and . . .

19   inform decisionmakers and the public of the reasonable

20   alternatives which would avoid or minimize adverse impacts or

21   enhance the quality of the human environment."    40 C.F.R.

22   § 1502.1; see 42 U.S.C. § 4332(2)(C).    "NEPA is a procedural

23   statute that mandates a process rather than a particular

24   result. . . .    [It] does not command an agency to favor any

25   particular course of action, but rather requires the agency to

26   withhold its decision to proceed with an action until it has taken

27   a 'hard look' at the environmental consequences."    Stewart Park &
                                      27
1    Reserve Coal., Inc. (SPARC) v. Slater, 352 F.3d 545, 557 (2d Cir.

2    2003) (internal citation omitted).      The court's role is to ensure

3    that NEPA's procedural requirements have been satisfied, not to

4    "interject itself within the area of discretion of the executive

5    as to the choice of the action to be taken."     Kleppe v. Sierra

6    Club, 427 U.S. 390, 410 n.21 (1976) (internal quotation marks

7    omitted).

8                Where there is uncertainty regarding the potential

9    effects of an agency action, "speculation in an EIS is not

10   precluded, [but] the agency is not obliged to engage in endless

11   hypothesizing as to remote possibilities."     County of Suffolk v.

12   Sec'y of Interior, 562 F.2d 1368, 1379 (2d Cir. 1977).     Even where

13   this uncertainty arises from disparate state and local regulation

14   that may affect federal action, we have not required detailed

15   information regarding the effects of these regulations in an EIS

16   where such "information would be of little or no utility in

17   determining the impact of state and local exercise of regulatory

18   powers, since each of the states and municipalities affected could

19   change its regulations . . . between the publication of the EIS"

20   and the time when such local regulations would affect the federal

21   action.   Id.

22               The plaintiffs point to the lack of site-specific or

23   localized analysis in the EIS as evidence that the FWS violated

24   NEPA's requirement to examine and permit the public to comment on

25   the environmental impact of the proposed Depredation Order.      But

26   under the order, the FWS did not commit itself to any site-

                                        28
1    specific actions, and it would have been largely speculative for

2    the FWS to identify the specific, localized areas where control

3    efforts under the order would take place.    We therefore do not

4    think that the FWS was obligated under NEPA to include site-

5    specific analyses in the EIS.

6              Under the Depredation Order, local agencies have

7    discretion to select the particular sites at which to pursue

8    depredation control efforts, subject of course to the constraints

9    set forth in the Depredation Order.     The Depredation Order does

10   not itself mandate that local agencies utilize their authority

11   under the Order.    And, because cormorant depredation is highly

12   localized, and because the Depredation Order limits control

13   efforts only to those cormorants "found committing or about to

14   commit" depredation, the exact locations where local agencies

15   might act pursuant to the Depredation Order could not be known

16   with any certainty by the FWS in advance.    These compounded

17   uncertainties would render any site-specific EIS virtually

18   impossible to prepare.    Not only would it be uncertain where

19   control efforts under the Depredation Order could take place, it

20   would remain uncertain whether any control efforts actually would

21   take place there.    The FWS had no means of reliably identifying

22   the relevant sites, let alone ascertaining whether any actions

23   under the Depredation Order would be warranted at that site.

24   Effects that are not reasonably foreseeable need not be included

25   in an EIS.   See 40 C.F.R. § 1508.8 (including as effects for EIS

26   purposes those "which are caused by the action and are later in

                                        29
1    time or farther removed in distance, but are still reasonably

2    foreseeable"); Suffolk County, 562 F.2d at 1378 ("If the

3    additional information would at best amount to speculation as to

4    future event or events, it obviously would not be of much use as

5    input in deciding whether to proceed.").    The FWS therefore did

6    not violate NEPA by omitting site-specific analyses in this case.

7              In the absence of any certain site-specific action,

8    then, it was sufficient for the FWS here to prepare only a

9    programmatic EIS.    See 40 C.F.R. § 1502.4(c) (Environmental impact

10   statements on "broad actions" may be prepared "[g]enerically,

11   including actions which have relevant similarities, such as common

12   timing, impacts, alternatives, methods of implementation, media,

13   or subject matter."); see also Friends of Yosemite Valley v.

14   Norton, 348 F.3d 789, 801 (9th Cir. 2003) ("NEPA requires a full

15   evaluation of site-specific impacts only when a 'critical

16   decision' has been made to act on site development -- i.e., when

17   the agency proposes to make an irreversible and irretrievable

18   commitment of the availability of resources to [a] project at a

19   particular site.    The determination of whether a 'critical

20   decision' has been made begins with an accurate description of the

21   [agency's] proposed action." (emphases, internal quotation marks,

22   and citations omitted)).    Any site-specific actions to which the

23   FWS or any other agency subsequently committed would require the

24   preparation of a site-specific EIS – even if the action were

25   undertaken pursuant to the Depredation Order -- if the

26   programmatic EIS is insufficient to address the environmental

                                        30
1    impact of the site-specific action.   See Nat'l Audubon Society v.

2    Hoffman, 132 F.3d 7, 13 (2d Cir. 1997) (citing Manatee County v.

3    Gorsuch, 554 F. Supp. 778 (M.D. Fla. 1982)).   But because the

4    Depredation Order itself does not commit FWS to any site-specific

5    control efforts, its adoption did not require any corresponding

6    site-specific EIS.

7              The FWS did not violate NEPA in adopting the Depredation

8    Order.

9                                CONCLUSION

10             We have considered the plaintiffs' remaining arguments

11   and find them to be without merit.    For the foregoing reasons, the

12   judgment of the district court is affirmed.




                                      31
