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Natural Resources Defense Council v. U.S. Department of the Interior

ELR Citation: 49 ELR 20125
Nos. 18-CV-4596 (VEC), 18-CV-4601 (VEC), and 18-CV-8084, (S.D.N.Y., 07/31/2019) (Caproni, J.)

A district court granted in part and denied in part DOI's motion to dismiss a challenge to its 2017 interpretation of the Migratory Bird Treaty Act that permitted the "incidental" taking of migratory birds. Environmental groups and states argued the agency's interpretation was arbitrary and capricious, and thus should be vacated. DOI moved to dismiss for lack of standing. The court held the plaintiffs did have standing because at least one of the states had adequately alleged that the interpretation created a substantial risk that migratory birds owned by the state would be killed by private actors, and further that it was plausible that vacating the interpretation would reduce that risk. One of the groups also argued the interpretation was issued without notice and opportunity for comment in violation of the APA. But the court found that the agency action was an "interpretative rule," and thus that it was exempt from the APA's notice-and-comment requirements. It therefore granted DOI's motion to dismiss the notice-and-comment claim, but denied the agency's motion to dismiss the plaintiffs' other claims.