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Friends of Animals v. Clay

ELR Citation: 46 ELR 20024
Nos. 14-4071-cv, (2d Cir., 01/26/2016)

The Second Circuit upheld a "depredation permit" FWS issued to the Port Authority of New York and New Jersey authorizing the emergency "take" of migratory birds that threaten to interfere with aircraft at the John F. Kennedy International Airport. FWS issued the permit under 50 C.F.R. §21.41, which allows FWS to issue depredation permits that authorize the taking of migratory birds that are causing injury to certain human interests. The permit at issue here contains species-specific quotas as well as an "emergency take" provision that allows the Port Authority to take any migratory bird (except bald eagles, golden eagles, or endangered or threatened species) in emergency situations that pose a direct threat to human safety. An animal rights group challenged the permit, arguing that §21.41 does not authorize FWS to issue a permit that allows the emergency take of a migratory bird irrespective of its species. But the court disagreed. The regulation plainly authorizes FWS to issue depredation permits that contain non-species-specific emergency-take provisions. To hold otherwise would place port authority officials in the "untenable position" of having to choose between violating federal law and deliberately ignoring serious threats to human safety.