
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2387                           THE AMERICAN BALD EAGLE, ET AL.,                               Plaintiffs, Appellants,                                          v.                                ILYAS BHATTI, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                         and DiClerico, Jr.,* District Judge.                                              ______________                                _____________________               Florence Mansbach,  with whom  Steven M.  Wise and  Fraser &               _________________              _______________      ________          Wise, P.C., were on brief for appellants.          __________               Mary C.  Connaughton, Assistant Attorney  General, with whom               ____________________          Scott Harshbarger, Attorney General,  and Rebbeca Webb, Assistant          _________________                         ____________          Attorney General, were on brief for appellees.                                 ____________________                                  November 16, 1993                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    TORRUELLA, Circuit Judge.   The issue to  be decided by                               _____________          this appeal  is whether  the hunting of  deer on  a Massachusetts          reservation significantly affects bald eagles so as to constitute          a prohibited "taking" of that  endangered species1 as defined  by          the Endangered  Species Act  ("ESA").2  16  U.S.C.     1532(19) &          1538(a)(1)(B).   How we  get from a  deer hunt  to an  allegation          regarding   the  taking  of  bald  eagles  requires  considerable          explanation.          I.  BACKGROUND          I.  BACKGROUND              __________                    The  Massachusetts Division  of Fisheries  and Wildlife          ("DFW") operates a restoration project for bald eagles on Quabbin          Reservation   in   Eastern  Massachusetts   ("Quabbin").     This          reservation covers an area of approximately 125  square miles and          contains a 25,000 acre reservoir.  According to the DFW  the bald          eagle  population has ranged from  a low of 13 in  1982 to an all          time high of 45 in 1992.  In that year, the  statewide population          of bald eagles was estimated at 60.                    In 1986, the  Metropolitan District Commission  ("MDC")          began to  investigate the  impact of deer  feeding habits  on the          forest at  Quabbin.  Among  other findings, the  study determined          that the deer  population at Quabbin  far exceeded the  statewide          average of 6-8 deer per square mile.  It was concluded  that this                                        ____________________          1  The bald eagle is listed as  an endangered species.  50 C.F.R.            17.11 (1992).          2   The defendant-appellees in this case  are Ilyas Bhatti in his          capacity as  Commissioner of the Metropolitan District Commission          and  Wayne   McCallum  in  his   capacity  as  Director   of  the          Massachusetts Division of Fisheries and Wildlife.                                         -2-          was the  result of a  then existing deer hunting  prohibition and          the decline of natural predators in the Reservation.  It was also          found  that  deer  consumption of  tree  seedlings  was gradually          eliminating the root  system necessary for the  soil to act  as a          filter  for  pollutants.   This  in turn  posed a  threat  to the          quality of water  at the Reservoir.  After  considering a variety          of  alternatives, the MDC concluded that the only effective means          of addressing the underlying problem was to allow controlled deer          hunting in the reservation.                    Legislation was  subsequently enacted  by the  State to          permit a limited deer hunt  at Quabbin under the MDC's authority.          Mass. Regs. Code tit. 350,    8.02 (1991).  Thereafter,  the MDC,          aided  by DFW recommendations,  developed a deer  management plan          that attempted to  ensure that the eagles would  not be disturbed          by the deer hunt.                    In  the fall of 1991, appellants brought this action to          enjoin the  limited  deer hunt  on  the ground  that  it posed  a          significant risk  to the bald  eagles at Quabbin in  violation of          the ESA.    16 U.S.C.      1538(a)(19) &  1532(19) (1985).    The          nucleus of  their allegation was  as follows:   some of the  deer          shot by  hunters during the  Quabbin hunt would not  be recovered          but would die  thereafter within the feeding area  of the Quabbin          bald  eagles;  these  deer,  termed  "cripple-loss  deer,"  would          contain lead  in their  bodies from  the lead  slugs used  by the          hunters  as  ammunition; and  bald  eagles  would  feed on  these          unrecovered deer carcasses, consume a  portion of the lead in the                                         -3-          deer, and be harmed by the lead.                    The district  court denied  the preliminary  injunction          ruling that appellants  failed to show a reasonable likelihood of          success  on  the  merits.     The  hunt  proceeded  as   planned.          Appellants  then requested a permanent injunction which the court          also  denied because it  concluded that the  hunt did not  pose a          significant  risk  of harm  to  the  bald  eagles.   This  appeal          followed.          II.  LEGAL STANDARD          II.  LEGAL STANDARD               ______________                    Appellants make  two legal  challenges to  the district          court's decision.   Appellants  first contend  that the  district          court  applied  the wrong  legal  standard in  holding  that they          failed to prove that the  proposed Quabbin Reservation deer  hunt          posed a significant risk of harm to its bald eagles.   Appellants          next argue that  the district court erred  as a matter of  law by          failing  to define "significant risk."  This failure, they argue,          under  Federal  Rule  of  Civil  Procedure  52(a),  violated  the          requirement  that the  court find the  facts specially  and state          separately its conclusions of law thereon.  We review these legal          challenges de novo.  In re: Extradition of Howard, 996 F.2d 1320,                     _______   ____________________________          1327  (1st  Cir. 1993);  Societ   des  produits  Nestl   v.  Casa                                   ______________________________      ____          Helvetia, Inc., 982 F.2d 633, 642 n.9 (1st Cir. 1992).          ______________                    The  ESA  prohibits  the   "taking"  of  an  endangered          species.  16  U.S.C.   1538(a)(1)(B).  The ESA  defines "take" as          follows:   "To harass,  harm, pursue, shoot,  wound, kill,  trap,          capture, or to attempt to engage in any such conduct."  16 U.S.C.                                         -4-             1532(19).    Appellants  ask that  we  establish  a  numerical          standard for determining  which actions constitute a  "taking" of          an endangered  species.  They would have  us establish that a one          in  a  million  risk  of   harm  is  sufficient  to  trigger  the          protections of the  ESA.  We  reject this  invitation as we  find          nothing in the ESA,  its regulations or legislative  history that          supports such an arbitrary figure.                    Rather  than  convince  us   to  adopt  a   restrictive          numerical  standard for harm under the ESA, appellants' analogies          to  other regulatory regimes demonstrate that the exact numerical          standard for permissible harm or risk of harm varies according to          the context.   For  example, while  a risk  of one  in a  hundred          thousand has  been thought  to be appropriate  in the  context of          regulating benzene  emissions from  coke  by-product plants,  see                                                                        ___          National  Emission Standard for Hazardous Air Pollutants, 49 Fed.          Reg. 23,521, 23,527 (1984), a definition of  one in a million has          been  considered more appropriate in other circumstances, such as          in the analysis of carcinogenicity  data, see 45 Fed. Reg. 36,942                                                    ___          (Environmental  Protection  Agency:     Proposed  Guidelines  for          Carcinogen  Risk Assessment); see  also Public Citizen  v. Young,                                        _________ ______________     _____          831 F.2d  1108, 1112-13 n.4  (D.C. Cir. 1987), cert.  denied, 485                                                         _____________          U.S.  1006  (1988).    In  the  examples   cited  by  appellants,          regulatory  agencies,  like  the   EPA,  adopted  numerical  risk          standards only after consideration  of extensive scientific data,          publication  of  proposed  standards  for   public  comment,  and          extensive public hearings.   Here, none of  these procedures have                                         -5-          occurred and  appellants provide  no other  convincing basis  for          blindly  applying  a  numerical  standard  developed  in  another          context   to  the   definition  of   "taking"   under  the   ESA.          Furthermore, the cases cited by  appellants arise in the  context          of  regulations involving  the use  of substances that  have been          scientifically proven to be harmful to humans.  See, e.g., Public                                                          ___  ____  ______          Citizen,   831  F.2d   1108  (carcinogens  in   food  additives);          _______          International Union, UAW v. Pendergrass,  878 F.2d 389 (D.C. Cir.          ________________________    ___________          1989) (OSHA regulation of formaldehyde).  In contrast, appellants          have presented  no studies that have  shown that the use  of lead          slugs in deer hunts has  been scientifically proven to cause harm          to bald eagles.3                    The proper standard for establishing a taking under the          ESA, far  from being  a numerical probability  of harm,  has been          unequivocally  defined  as  a  showing  of "actual  harm."    The          Secretary of  Interior has defined  "harm," as it appears  in the          ESA  statute, setting out  what constitutes a  prohibited taking,          see discussion supra p. 4, as:          ___            _____                      an  act which  actually kills  or injures                      wildlife.    Such  an   act  may  include                      significant   habitat   modification   or                      degradation  where it  actually kills  or                      injures    wildlife    by   significantly                                        ____________________          3  Appellants  did present a study showing  that the ingestion of          No. 4  lead shot  caused harm  to bald  eagles.   In  that study,          eagles were fed ten  pellets of lead shot  a day for a  period of          ten to  fifteen days.   In the present case,  however, appellants          have not shown  that eagles have eaten or will eat any lead slugs          (a considerably larger caliber than  No. 4 shot) as a consequence          of  the deer hunts.   Furthermore, one of  the limitations of the          Quabbin deer hunt  was that hunters could use only lead slugs, no          bullets and no shot.                                          -6-                      impairing essential  behavioral patterns,                      including     breeding,     feeding    or                      sheltering.          50 C.F.R.    17.3  (1992).  In  formulating this  definition, the          Secretary has explained that:                      Congress  made  its   intent  to  protect                      species  very  clear.  .  .  .    in  the                      preamble  to the  original definition  of                      harm:   "Harm" covers actions . . . which                      actually  (as  opposed  to  potentially),                      cause injury . . . .                      The purpose of the rulemaking was to make                      it  clear  that  an actual  injury  to  a                                          ______                      listed species must be found for there to                      be a taking under Section 9.          46 Fed. Reg. 54,748, 54,749 (1981).                    Clearly, then, for  there to be  "harm" under the  ESA,          there must be actual injury  to the listed species.  Accordingly,          courts have granted injunctive relief only where petitioners have          shown that the alleged  activity has actually harmed  the species          or if continued  will actually, as opposed to  potentially, cause          harm   to  the   species.     See   Defenders   of  Wildlife   v.                                        ___   ________________________          Administrators, 882 F.2d 1294 (8th Cir. 1988) (enjoining the  EPA          ______________          from continuing its registration of strychnine after finding that          continued registration of the substance resulted in poisonings of          protected species);  Sierra Club  v. Yeutter,  926 F.2d 429  (5th                               ___________     _______          Cir. 1991) (enjoining the United States Forest Service from even-          aged  lumbering  following  documentation   by  scientists  of  a          dramatic decline in  active Red Cockaded Woodpecker  colonies and          findings by the  court tracing the decline directly  to Service's          lumbering  practices).   See  also  National  Wildlife  Fed'n  v.                                   _________  _________________________                                         -7-          National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987) (no "taking"          ___________________          where a plan was designed to reduce conflicts between man and the          grizzly bear and in the first season of operation under the plan,          there were no bear mortalities).                     In this case, appellants  have not shown that the  hunt          caused actual harm.  Our review of the record indicates that bald          eagles  can  be  harmed by  the  ingestion  of lead.    There is,          however, no evidence in the record of any harm to the bald eagles          at Quabbin as a  result of the 1991 deer hunt.   See Pauite Tribe                                                           ___ ____________          v. U.S. Dept.  of the Navy, 898  F.2d 1410, 1420 (9th  Cir. 1990)             _______________________          (activity must  cause the harm).   There is no  evidence that any          eagles at Quabbin actually ingested  lead slug or that any eagles          ate deer carrion containing lead slug.   After hearing all of the          evidence, and considering  among other factors the  likelihood of          the  presence  of lead  in cripple-loss  deer, the  likelihood of          ingestion  of  lead  by  eagles  feeding on  the  deer,  and  the          likelihood  that if  an eagle  ingests  lead, it  will be  harmed          thereby,  the  district judge  was  not persuaded  that  the bald          eagles would be  harmed by the proposed  hunt.  We find  that the          record fully supports the conclusion of the trial judge.4                                           ____________________          4  We note that the  ESA definition of "take," includes the  term          "harass."   50 U.S.C.   1532(19).   The regulations of the United          States Fish and Wildlife Service define "harass" as:                      an  intentional  or negligent  act  which                      creates  the  likelihood   of  injury  to                      wildlife by annoying it to such an extent                      as   to   significantly   disrupt  normal                      behavioral patterns which include but are                      not  limited  to, breeding,  feeding,  or                      sheltering.                                         -8-                    Appellants' challenge of  the district court's decision          for allegedly  failing to  give specific  findings under  Federal          Rule  of  Civil Procedure  52(a)  is  also  without merit.    The          district  court  clearly   stated  the  relevant  statutory   and          regulatory provisions.  To  the extent that the district  court's          decision rested upon  an interpretation of these  provisions that          varies from that which we  have established, the court employed a          more  liberal  interpretation  of  the  statutory  requirements.5          Moreover,  the court  made  clear  factual  findings.   As  such,          appellants'  Rule 52(a)  challenge  fails.   We  do  not find  it          necessary for  the court to  numerically define  the standard  it          applies in  order to comply with this rule.  Furthermore, we find          that the record adequately supports  a finding that the  proposed          deer hunt  does not constitute  a "taking" within the  meaning of                                        ____________________          50 C.F.R.   17.3 (1992).             Because  appellants have  not  shown  that  bald  eagles  have          ingested  lead slugs nor  fragments thereof during  past hunts or          will ingest lead slugs or fragments thereof during future  hunts,          we have no reason to consider whether the ingestion of lead slugs          or fragments thereof  would lead to a disturbance  of the eagles'          behavior  pattern  to  the   extent  that  it  would   amount  to          "harassment" of the bald eagles.          5   The  district court  correctly stated  that the  issue to  be          decided was "whether the hunt will cause  harm or whether it will          harass, or cause the [b]ald [e]agle to be harassed."  The parties          agreed that the plaintiffs  had the burden  of proof and that  in          order  to prevail  they must  show that  "the  deer hunt  poses a          significant risk  of harm to  the [b]ald [e]agle."   By requiring          the plaintiffs to show only  "a significant risk of harm" instead          of "actual harm,"  the district court required a  lower degree of          certainty  of harm  than we interpret  the ESA  to require.   The          appellants certainly cannot meet this court's standard of "actual          harm" if the  district court found that they failed to prove that          even a "significant risk of harm" existed.                                         -9-          the ESA.6          III.  CREDIBILITY OF WITNESSES          III.  CREDIBILITY OF WITNESSES                ________________________                    Appellants claim that the  district court clearly erred          by discounting the  testimony of appellants' experts  and finding          more credible the  testimony of appellees' experts  regarding the          effect of the deer hunt on bald eagles at Quabbin.                     We review the district court's credibility findings for          clear  error.  Brennan  v. Carvel Corp.,  929 F.2d  801, 806 (1st                         _______     ____________          Cir. 1991) (in non-jury trials, findings of fact based on oral or          documentary evidence should  only be set aside  for clear error).          See also  Anderson v. Bessemer  City, 564 U.S. 575  (1984) (where          ________  ________    ______________          there are two permissible views of the evidence, the factfinder's          choice between them cannot be  clearly erroneous).  On the record          presented, the  district court did not err.   Thus, we affirm the          findings of the district court.          IV.  EXCLUSION OF APPELLANTS' EXHIBITS FROM EVIDENCE          IV.  EXCLUSION OF APPELLANTS' EXHIBITS FROM EVIDENCE               _______________________________________________                    Appellants  posit  that  the  lower  court  erroneously                                        ____________________          6  We  are aware of the decision of  National Wildlife Federation                                               ____________________________          v. Hodel, 23 Env't Rep. Cas. (BNA) 1089 (E.D. Cal. Aug. 26, 1985)             _____          in which  a court enjoined  hunting of migratory birds  with lead          shot, finding a  "taking" of the bald eagle.  We believe that the          present case is  easily  distinguishable.  In  National Wildlife,                                                         _________________          the  defendant had published a  proposed rule stating that "there          is  a substantial  likelihood that  lead shot  used by  waterfowl          hunters poses a threat to  bald eagles" and significant  evidence          indicated  that  most  lead  shot  that  poisons  bald  eagles is          consumed by the eagles when  they feed upon other migratory birds          that are themselves  either ill due to consumption  of lead shot,          or have been wounded or killed by  lead shot but not retrieved by          hunters.    In the  present  case,  the  defendant made  no  such          admission  and the  evidence did  not  indicate that  eagles were          poisoned  by   feeding  on   deer  carcasses.     Id.  at   1090.                                                            ___          Furthermore, the  present case concerns  the use of  lead "slugs"          rather than lead "shot."                                         -10-          excluded appellants' exhibits  11, 11A, 11B, 11C, 12  and 13 from          evidence.    We   disagree.    Appellants  offered   as  exhibits          highlighted  portions of  documents  which  the  court  found  to          contain only portions  of sentences taken out of  context.  These          exhibits were offered by appellants as either self-authenticating          documents or admissions.   Appellees objected to  their admission          on the grounds of completeness and that the statements were taken          out of context and stated during trial "we only prefer . . . that          the  entire document  be  admitted  in  evidence, as  opposed  to          highlighted portions."                      Pursuant to  Federal Rule  of Evidence  106, "[w]hen  a          writing  .  . .  or part  thereof  is introduced  by a  party, an          adverse party  may require the  introduction .  . . of  any other          part   .  .   .   which   ought   in   fairness   be   considered          contemporaneously with  it."   Appellants argue  in their  briefs          that "as the defendants did not even dispute the admissibility of          the entire documents, the Court  was bound to accept the portions          offered by the  plaintiffs and allow the defendants  to offer any          additional portions  . . . ."   The record shows that  it was not          appellees, but  appellants who vehemently  opposed admitting into          evidence   the  entire  document  which  would  put  the  phrases          contained  in their offered  exhibits into context.   In essence,          before  making  a  final ruling  on  the  admissibility  of these          statements, the  lower court  let appellants  choose whether  the          entire documents or  no portions thereof would be  admitted.  The          court  did not  abuse its  discretion in  refusing to  admit only                                         -11-          misleading portions of documents taken out of context.7                    Affirmed.                    ________                                        ____________________          7  We have  no occasion to review the lower  court's finding that          the exhibits appellants  sought to admit into  evidence contained          portions of  sentences taken out  of context.  Appellants  do not          argue that they were in context and on appeal, they have supplied          us with entire  pages taken from those documents from which it is          impossible to ascertain which portions they wished admitted.                                           -12-
