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Humane Soc'y of the United States v. Watt

ELR Citation: 13 ELR 20530
Nos. No. 82-2689, 551 F. Supp. 1310/(D.D.C., 11/29/1982)

The court rules that the Fish and Wildlife Service (FWS) complied with the Migratory Bird Treaty Act (MBTA) and the National Environmental Policy Act (NEPA) in continuing into the 1982-1983 hunting season regulations that permit black duck hunting. Available evidence indicates that the black duck population has been in decline since the late 1950s. While scientific studies conflict on the relationship of hunting limits to the decline, the black duck population continued to decline despite limits on hunting.

In reviewing FWS' regulations, the court applies an arbitrary and capricious test, holding that the strict scrutiny test is inapplicable because the regulations neither change the past regulatory approach significantly nor deviate from the congressional intent of the MBTA. The court holds that despite the conservation purpose of the MBTA, it does not create a presumption against hunting as the plaintiffs suggest, but instead aims to preserve sufficient numbers of game birds, such as the black duck, to provide an ample stock of game for hunting in future years. Nor does the MBTA impose a duty on FWS to prohibit black duck hunting because of a decline in the duck population. The affirmative duty to protect endangered or threatened species that is imposed by the Endangered Species Act (ESA) cannot be read into the MBTA, and the ESA is inapplicable to the black duck, which is neither endangered nor threatened. The court rules that the regulations are consistent with FWS' goal of limiting harvests that affect game bird populations because the declining population has not been linked definitively to hunting. In addition, the agency acted in good faith.

Finally, the court holds that FWS acted reasonably in not preparing an environmental assessment (EA) or a supplement to its 1975 environmental impact statement (EIS) on hunting regulations for migratory birds. The existing EIS, the 1976 and 1980 EAs, and the 1982 EA supplement adequately address the relevant scientific studies. The regulations do not make substantial changes in the existing regulatory program so as to require a new EIS. Further, the decline in the black duck population and the post-1975 studies do not constitute significant new circumstances or information that require a new EIS.

The full text of the opinion is available from ELR (13 pp. $2.25, ELR Order No. C-1301).

Counsel for Plaintiffs
Ellen Bass, J. Peter Byrne, Michael A. Roth
Covington & Burling
P.O. Box 7566, Washington DC 20044
(202) 662-6000

Counsel for Defendants
John Vance Hughes
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7352

Diane Kelly
Criminal Division
Department of Justice, Washington DC 20530
(202) 633-2502

Counsel for Amicus Curiae
Patrick A Parenteau
National Wildlife Federation, 1412 16th St. NW, Washington DC 20036
(202) 797-6800

Green, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]