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Humane Soc'y of the United States v. Glickman

Citation: 30 ELR 20758
No. No. 99-5309, 217 F.3d 882/50 ERC 2089/(D.C. Cir., 07/18/2000)

The court holds that the U.S. Department of Agriculture (USDA) violated Migratory Bird Treaty Act (MBTA) § 703 when, without a permit from the U.S. Department of the Interior (DOI), it killed Canada geese during the implementation of its integrated goose management plan. The court first holds that MBTA § 703 prohibits anyone, including federal agencies, from killing any migratory bird without a permit. Federal agencies are not exempt from § 703 by virtue of the MBTA § 707(a) criminal penalty provision, under which the term "person" does not include the sovereign. MBTA § 703 can be enforced against the federal government through a suit against the appropriate federal officer for injunctive relief. In addition, the MBTA implements the International Convention for the Protection of Migratory Birds treaty entered into between the United States and Canada. If the Canadian government slaughtered migratory birds in Canada without a permit, it would be in violation of the treaty. Thus, if a federal agency in the United States did the same, it too would violate the treaty. There is no reason to treat the MBTA differently from the treaty since the MBTA was meant to give effect to the treaty. Moreover, the USDA does not administer the MBTA, so its interpretation of § 703 is entitled to no deference. Consequently, the court then holds that because the USDA did not obtain a permit from the DOI, its implementation of the integrated goose management plan by taking and killing Canada geese violated MBTA § 703.

Counsel for Appellees
Jonathan R. Lovvorn
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Appellants
James C. Kilbourne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Edwards and Garland, JJ.