     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                                       Errata filed: September 18, 2008)

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 appeal.

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, 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 the category of game

16   birds, which the parties agree does not include the cormorant.

17   Id. at 412-14.

18             The district court rejected the plaintiffs' argument

19   that the defendants' adoption of the Depredation Order was

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

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

22   crested cormorant adversely affects public resources; 2) the

23   Depredation Order is a reasonable method of effectuating the

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

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



                                    14
1    also determined that the defendants had complied with the

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

3              The district court therefore granted the defendants'

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

5    claims.

6              The plaintiffs appeal the judgment of the district

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

8                                DISCUSSION

9              I.   Standard of Review

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

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

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

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

14   163, 167 (2d Cir. 2007).   Our review of the Depredation Order

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

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

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

18   706(2)(A); see also, e.g., Nat'l Black Media Coal. v. FCC, 822

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

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

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

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

23   Substantial evidence "means such relevant evidence as a



          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 of whether the Depredation Order violates the
     Endangered Species Act, 16 U.S.C. § 1532 et seq.
                                     15
1    reasonable mind might accept as adequate to support a

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

3    (1951) (internal quotation marks and citation omitted).     "The

4    reviewing court must take into account contradictory evidence in

5    the record, but the possibility of drawing two inconsistent

6    conclusions from the evidence does not prevent an administrative

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

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

9    (1981) (internal quotation marks and citations omitted).     When an

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

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

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

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

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

15               In evaluating agency reasoning, we must be satisfied

16   that the agency examined the relevant data and established a

17   "rational connection between the facts found and the choice

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

19   Co., 463 U.S. 29, 43 (1983) (internal quotation marks and

20   citation omitted).

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



                                      16
1    Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir. 2000)

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

3    (2001).

4              II.   Whether the Depredation Order Violates the MBTA

5              The plaintiffs argue that by delegating "management

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

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

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

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

10   these third parties is limited and subject to adequate oversight

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

12   contravene the MBTA.

13             Delegation of statutory responsibility by federal

14   agencies and officers to outside parties is problematic because

15   "lines of accountability may blur, undermining an important

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

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

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

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

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

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

22   such delegation is impermissible.    Id.

23             The MBTA authorizes the Secretary of the Interior "to

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

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

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

                                     17
1    statute does not specifically provide for this authority to be

2    delegated to third parties.   Because any unauthorized delegation

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

4    inquiry focuses on whether the Depredation Order is, in fact,

5    such a delegation.

6              An agency delegates its authority when it shifts to

7    another party "almost the entire determination of whether a

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

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

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

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

12   advice and policy recommendations from outside parties, but they

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

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

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

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

17   2d at 20, an agency abdicates its "final reviewing authority,"

18   id. at 19.

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

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

21   narrower band of discretion afforded to those acting under the

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

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

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

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

26   acting pursuant to the Depredation Order are limited to takings

                                     18
1    of cormorants, and cormorants only, and even then, solely "to

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

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

4    Even if we accept the plaintiffs' warning that the term

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

6    include birds engaging in the natural behavior of eating fish

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

8    Depredation Order nonetheless restricts the species, locations,

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

10   occur, thereby restricting the discretion that may be exercised

11   by third   parties acting under the Order.

12              The Depredation Order therefore does not represent a

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

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

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

16   reasonable connection between the outside entity's decision and

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

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

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

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

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

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

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

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

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

26   regard, the Depredation Order differs from the permit and

                                     19
1    rulemaking system for handling requests for depredation permits

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

3    depredation control efforts unless the FWS first affirmatively

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

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

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

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

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

9    "suitable regulations permitting and governing" takings.   16

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

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

12   scheme, satisfy this statutory requirement.

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

14   authority to regulate takings under the Depredation Order before

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

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

17   10 percent of the double-crested cormorants in a breeding colony"

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

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

20   authority of third parties to act pursuant to the Depredation

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

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

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

24   Finally, the Depredation Order requires third parties acting

25   under it to submit annual reports detailing their activities.

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

                                     20
1    assessment of the effectiveness of control efforts, a description

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

3    the number of cormorants and other migratory birds killed.

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

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

6    nationwide status of cormorant populations and to respond to

7    long-term effects on the species.

8                We conclude that the Depredation Order does not violate

9    the MBTA.

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

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

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

14   establishment of close seasons, which will prohibit in certain

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

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

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

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

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

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

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

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

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

24   Mexico Convention itself is ambiguous regarding the question of

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

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


                                       21
1    Convention requires a close season only for the category of game

2    birds, which the parties agree do not include the cormorant.

3               "Respect is ordinarily due the reasonable views of the

4    Executive Branch concerning the meaning of an international

5    treaty."   El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S.

6    155, 168 (1999); see also Sumitomo Shoji America, Inc. v.

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

8    the meaning attributed to treaty provisions by the Government

9    agencies charged with their negotiation and enforcement is

10   entitled to great weight.").

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

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

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

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

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

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

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

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

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

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

21   provisions addressing hunting can reasonably be read to suggest

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

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

24              The distinction drawn in Article IV between game birds

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

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

                                     22
1    treaty made this distinction makes it clear enough that they were

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

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

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

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

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

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

8    do not.

9               The plaintiffs suggest that the references to hunting

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

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

12   specific purposes.   The "close season" requirement remains

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

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

15   Article II that would foreclose the defendants' contrary

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

17   is not unreasonable, but the treaty does not unambiguously

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

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

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


          3
             The plaintiffs also argue that even if Article II(A) is
     ambiguous, the defendants' interpretation is not entitled to
     deference under Chevron U.S.A., Inc. v. Natural Res. Def.
     Council, 467 U.S. 837, 842-43 (1984), because the agency never
     expressly adopted this interpretation during the administrative
     process. Even if the FWS's interpretation had not been adopted
     prior to this litigation, however, it appears that we would still
     accord deference to the executive branch view concerning the
     meaning of the Mexico Convention. See United States v. De La
     Pava, 268 F.3d 157, 164 n.6 (2d Cir. 2001) (accepting the State
     Department's view concerning rights under the Vienna Convention,
                                     23
1              IV.    Whether the FWS Acted Arbitrarily or Capriciously
2                     in Adopting the Depredation Order

3              The plaintiffs contend that the FWS acted arbitrarily

4    and capriciously in adopting the Depredation Order.     In their

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

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

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

8              Although the Depredation Order applies to about half

9    the states, depredation control efforts pursuant to the

10   Depredation Order may take place only when cormorants are found

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

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

13   efforts, the Depredation Order provides a "rational connection

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

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

16   (internal quotation marks omitted).

17             As the plaintiffs observe, the FWS does not provide

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

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

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

21   support the Depredation Order.    In its review of studies

22   addressing the impact of cormorants on various types of public

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

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

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


     provided in response to questions posed by the Court of Appeals
     for the First Circuit).
                                     24
1    at 58,025; that "[w]hile large-scale impacts on regional or

2    continental bird populations have not been documented" there was

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

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

5    caused significant financial loss at aquaculture facilities and

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

7    58,026.   Studies reviewed by the FWS also concluded that

8    cormorant predation had adverse impacts in states including

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

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

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

12   predation at aquaculture or hatchery facilities.   As the FWS

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

14   of the interaction between cormorants and local resources.    The

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

16   and their impacts on resources across a variety of ecological

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

18   "better information on population status and trends is

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

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

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

22   not on a state-wide basis.

23              The remaining question, then, is whether the

24   Depredation Order is a reasonable response to this evidence of

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

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

                                      25
1    the Order is "to enhance the ability of resource agencies to deal

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

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

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

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

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

7    21.48(c)(1).   All takings must be recorded and detailed in annual

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

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

10   colony.    The FWS may also prevent such activity it deems to be a

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

12   restrictions adequately limit depredation control activities

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

14   specifically found are caused by cormorants.   Although, as

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

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

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

18   expansive that it would render the order arbitrary and

19   capricious.

20              The plaintiffs also argue that instead of the

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

22   liberalized permitting scheme" similar to some of the

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

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

25   Depredation Order in providing local agencies with some degree of

26   flexibility, addressing actual cormorant damage, and avoiding

                                      26
1     unnecessary takings of cormorants.     However, the FWS has

2     articulated adequate explanations for its choice not to adopt

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

4     agencies a degree of flexibility that the FWS thinks will more

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

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

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

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

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

10    represents one rational response to the problem of cormorant

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

12    has explained its reasons for choosing one rational response over

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

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

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

16    adopting the Depredation Order.

17               V.   Whether the FWS Complied with NEPA in Adopting
18                    the Depredation Order

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

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

21   fair discussion of significant environmental impacts and . . .

22   inform decisionmakers and the public of the reasonable

23   alternatives which would avoid or minimize adverse impacts or

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

25   § 1502.1; see 42 U.S.C. § 4332(2)(C).    "NEPA is a procedural

26   statute that mandates a process rather than a particular

27   result. . . .    [It] does not command an agency to favor any
                                        27
1    particular course of action, but rather requires the agency to

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

3    a 'hard look' at the environmental consequences."   Stewart Park &

4    Reserve Coal., Inc. (SPARC) v. Slater, 352 F.3d 545, 557 (2d Cir.

5    2003) (internal citation omitted).    The court's role is to ensure

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

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

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

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

10   citation omitted).

11             Where there is uncertainty regarding the potential

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

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

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

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

16   this uncertainty arises from disparate state and local regulation

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

18   information regarding the effects of these regulations in an EIS

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

20   determining the impact of state and local exercise of regulatory

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

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

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

24   action.   Id.

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

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

                                      28
1    NEPA's requirement to examine and permit the public to comment on

2    the environmental impact of the proposed Depredation Order.      But

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

4    specific actions, and it would have been largely speculative for

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

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

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

8    specific analyses in the EIS.

9              Under the Depredation Order, local agencies have

10   discretion to select the particular sites at which to pursue

11   depredation control efforts, subject of course to the constraints

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

13   not itself mandate that local agencies utilize their authority

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

15   localized, and because the Depredation Order limits control

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

17   commit" depredation, the exact locations where local agencies

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

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

20   uncertainties would render any site-specific EIS virtually

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

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

23   would remain uncertain whether any control efforts actually would

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

25   the relevant sites, let alone ascertaining whether any actions

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

                                        29
1    Effects that are not reasonably foreseeable need not be included

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

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

4    time or farther removed in distance, but are still reasonably

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

6    additional information would at best amount to speculation as to

7    [a] future event or events, it obviously would not be of much use

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

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

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

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

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

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

14   including actions which have relevant similarities, such as common

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

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

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

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

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

20   the agency proposes to make an irreversible and irretrievable

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

22   particular site.    The determination of whether a 'critical

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

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

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

26   FWS or any other agency subsequently committed would require the

                                        30
1    preparation of a site-specific EIS – even if the action were

2    undertaken pursuant to the Depredation Order -- if the

3    programmatic EIS is insufficient to address the environmental

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

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

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

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

8    control efforts, its adoption did not require any corresponding

9    site-specific EIS.

10             The FWS did not violate NEPA in adopting the Depredation

11   Order.

12                               CONCLUSION

13             We have considered the plaintiffs' remaining arguments

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

15   judgment of the district court is affirmed.




                                      31
