Jump to Navigation
Jump to Content

National Audubon Soc'y v. Hester

ELR Citation: 16 ELR 20445
Nos. No. 86-0053, 627 F. Supp. 1419/(D.D.C., 02/08/1986)

The court holds that the Fish and Wildlife Service's (FWS') decision to remove all remaining California condors from the wild was arbitrary and capricious under the Administrative Procedure Act (APA) and the Endangered Species Act (ESA), and that FWS should have considered alternatives to the action under the National Environmental Policy Act (NEPA). The court first rules that the APA's judicial review provisions apply to the ESA and that the appropriate standard of review is whether the agency's action was arbitrary and capricious. The court then rules that, under this standard, plaintiff has demonstrated a likelihood of success on the merits for its claim that FWS failed to adequately protect the condor and its habitat under the requirements of the ESA. FWS' proposal to remove the five remaining condors from the wild was an abrupt change from its previous policy advocating the importance of a wild population. FWS provided no reasoned analysis that would justify its new position. In its environmental assessment (EA), prepared only three months earlier, FWS had rejected the alternative of capturing the remaining birds, and the agency had reaffirmed this choice less than a month before it authorized the capture. Even if the factors cited by FWS as justification were in fact new, the agency has insufficiently justified a policy reversal because it focused only on increasing genetic diversity among the captive population, ignoring other factors.

The court holds plaintiff has demonstrated a likelihood of success on the merits for its claim that FWS should have prepared an environmental impact statement (EIS). A single letter from the Counsel on Environmental Quality's general counsel noting the death of six condors is insufficient to justify FWS' claim that the action is an emergency and does not require an EIS. After noting that the test in this circuit for whether an agency must prepare an EIS is whether the proposed action may have significant environmental impacts, the court holds that FWS has not shown that the effects of removing the condors from the wild are insignificant. FWS never countered plaintiff's argument that removal of the birds from the wild would threaten the survival of the species, nor did FWS ever meaningfully consider alternatives to the capture. Consideration of such alternatives is independent of the duty to file an EIS. Observing that both parties actually have the same goal, the court rules that the balance of harms falls on the side of leaving the birds in the wild. FWS' own EA determined that capture would likely result in harm to the condors' habitat and that release of captive condors back into the wild would be risky. Finally, the public interest favors the issuing of an injunction since the abrupt change in FWS' position is arbitrary and capricious.

Counsel for Plaintiff
Kenneth Berlin
Winston & Strawn
Suite 500, 2550 M St. NW, Washington DC 20036
(202) 828-8400

Counsel for Defendants
Donald A. Carr, Leslie M. Cannan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7352