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Fund for Animals v. Kempthorne

ELR Citation: 38 ELR 20213
Nos. No. 05-2603, (2d Cir., 08/14/2008)

The Second Circuit affirmed a lower court decision dismissing animal rights organizations' claim that a U.S. Fish & Wildlife Service (FWS) depredation order authorizing certain state and federal agencies to kill double-crested cormorants violates the Migratory Bird Treaty Act (MBTA), the National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA), and international treaties relating to the protection of migratory birds. The groups argued that by delegating "management authority" to the states and other agencies, the order violates the MBTA's requirement that any killings of protected birds be specifically authorized by the FWS. The order, however, limits the discretion granted to these third parties. The order is also subject to adequate oversight by the FWS. Therefore, it does not contravene the MBTA. Nor does the order violate any international treaties to which the United States is a party. The Mexico Convention—the only treaty that refers specifically to cormorants—is ambiguous, and the FWS' view that the convention only requires "close seasons" for game birds is entitled to deference. And the FWS violated neither NEPA nor the APA in adopting the order.