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Fund for Animals v. Babbitt

ELR Citation: 27 ELR 20196
Nos. 95-6167, 89 F.3d 128/(2d Cir., 07/17/1996)

The court holds that the Fish and Wildlife Service's (FWS') provision of funding for a Vermont moose management project involving a hunt is not categorically excluded from the National Environmental Policy Act's (NEPA's) requirements. Vermont sought funding under the Federal Aid in Wildlife Restoration Act, which authorizes federal funding for state research into problems of wildlife management. The court first holds that the challenge to FWS' decision to fund the project is not moot. Even though two of the five elements of the Vermont moose hunting plan are no longer receiving federal funds, environmental group plaintiff's complaint specifically mentioned the three elements of the hunting plan that continue to receive federal funding. The court next holds that FWS' provision of funding for one of the elements, the preparation of recommendations for harvest regulation affecting moose densities, is unambiguous federal government involvement in the design, magnitude, and conduct of a moose hunt. The court next holds that this element is not categorically excluded from NEPA's review requirements, because it is not clear that it constitutes nondestructive data collection, inventory, study, research and monitoring, personnel training, environmental interpretation, a public safety effort, or other educational activity as the FWS asserts. Further, even if this element were categorically excluded, any categorical exclusion would likely be overridden by the highly controversial environmental effects of the financed activity. Similarly, the controversial environmental impact of an element that involves federally funded hunter training workshops may trump the presumption exclusion for education. Finally, the court declines to rule on standing because the parties did not fully brief the issue. The court remands the case to the district court for consideration of the standing issue, and, if appropriate, the merits of the plaintiff's case.

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

Counsel for Defendants
Charles R. Tetzlaff, U.S. Attorney
U.S. Attorney's Office
610 Federal Bldg., Burlington VT 05402
(802) 951-6725

Before: JACOBS, LEVAL, and PARKER, Circuit Judges.