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Fund for Animals v. Frizzell

Citation: 6 ELR 20188
No. No. 75-1597, 530 F.2d 982/8 ERC 1591/(D.C. Cir., 12/24/1975)

The D.C. Circuit Court of Appeals affirms a lower court's denial of preliminary injunctive relief against Fish and Wildlife Service regulations which permit hunting of the greater snow goose and the Atlantic brant in the Atlantic flyway during a limited season in 1975-76. The district court did not abuse its discretion, for plaintiffs failed to demonstrate a likelihood of irreparable harm in the absence of injunctive relief. Population levels for the two species in question have rebounded from low points reached shortly after hunting these birds was prohibited in 1971. The agency's previously prepared programmatic environmental impact statement on the sport hunting of migratory birds supports defendants' assertion that renewed hunting will not significantly diminish these populations. Plaintiffs' non-specific claims of "destruction and loss of wildlife" do not support issuance of an injunction in the face of this careful analysis. Moreover, plaintiffs are simply wrong in contending that the killing of even a single bird constitutes irreparable harm. The court expresses no opinion on the merits of plaintiffs' assertion that defendants illegally failed to prepare an EIS in conjunction with these regulations, and failed to allow a sufficient comment period. The court notes, however, that defendants most probably could have given plaintiffs more adequate notice that the ban on hunting these two species was being reconsidered. The court also points out that in any event the limited 1975-76 hunting season is almost over.

Counsel for Plaintiffs-Appellants
John N. Malyska
Meyner & Wiley
24 Commerce Street
Newark NJ 27102
(201) 624-2800

Counsel for Defendants-Appellees
Robert A. Kerry
Carl Strass
Irwin L. Schroeder
Edmund B. Clark
Department of Justice
Washington DC 20530
(202) 739-2770

Counsel for Intervenor-Appellee International Association of Game, Fish and Conservation Commissioners
Paul A. Lenzini
Charles A. Fax
Chapman, Duff & Lenzini
Suite 303, 1709 New York Ave., N.W.
Washington DC 20006
(202) 872-8311

Counsel for Intervenor-Appellee National Rifle Association
Richard W. Snowden
Cross, Murphy & Smith
1128 16th Street, N.W.
Washington DC 20036
(202) 393-8668

Before WRIGHT, TAMM and MacKINNON, Circuit Judges.