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Sierra Club v. Martin

ELR Citation: 27 ELR 21057
Nos. 96-8840, 110 F.3d 1551/(11th Cir., 04/29/1997) rev'd

The court holds that the Migratory Bird Treaty Act (MBTA) does not apply to the federal government. The court first holds that the U.S. Forest Service's appeal of an MBTA-based preliminary injunction to stop all government-approved timber-cutting and road-building activities in seven timber projects in the Chattahoochee and Oconee National Forests does not represent a moot controversy because the injunction's four-month term is too short to allow for appellate review before its expiration. Turning to the group's MBTA claim, the court notes that the MBTA is a criminal statute that makes it unlawful only for persons, associations, partnerships, and corporations to "take" or "kill" migratory birds. There is no expression of congressional intent that would warrant holding that "person" includes the federal government. The court reasons that Congress did not enact the MBTA to prohibit the Forest Service from taking or killing a single migratory bird or nest because it intended the Forest Service to follow the National Forest Management Act's regulatory process, rather than the MBTA's criminal prohibitions, in addressing conservation of migratory birds. As no violation of the MBTA could occur by any formal action of the Forest Service, the Forest Service may not be enjoined under the Administrative Procedure Act.

Counsel for Plaintiffs
Donald Stack
Law Offices of Donald Stack
100 Peachtree St. NW, Atlanta GA 30303
(404) 525-9205

Counsel for Defendants
Lois Schiffer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.