National Wildlife Federation v. Hodel

Civ. No. S-85-0837 EJG (E.D. Cal. August 26, 1985)

The court holds that the Fish and Wildlife Service has violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) by allowing the hunting of migratory birds with lead shot in areas in five states. The court first holds that the defendants have violated NEPA in not preparing a supplemental EIS to those prepared in 1975 and 1976. Defendants have acquired significant new information regarding the likely effects of lead shot on raptors during the last ten years and have found that bald eagles, an endangered species, are being poisoned by lead ingested when they feed on waterfowl. The court then holds the defendants have violated the ESA in not clearly identifying the factors that the agency considered relevant in its decision to authorize the use of lead shot and in not articulating a rational connection between those factors and the choice actually made. The court also holds that allowing the hunting season constitutes a "taking" under the ESA and that that defendants have not specified any measures to minimize the impact of their action on the taking of bald eagles during the 1985-1986 hunting season, in violation of § 7(b)(4) of the ESA. Finally, the court concludes there are no "unusual circumstances" present in this case to prevent it from issuing an injunction.

Counsel for Plaintiff
Jerry Jackson
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6827

Counsel for Defendant
Eileen Sobeck
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7371

Counsel for Intervenor-Defendants
James Bowe Jr.
Hunton & Williams
2000 Pennsylvania Ave. NW, Washington DC 20036
(202) 955-1533

Michael K. McCabe
National Rifle Association
1600 Rhode Island Ave. NW, Washington DC 20036
(202) 828-6344

[15 ELR 20892]

Garcia, J.:

Memorandum and Order

This matter came on calendar on August 13, 1985 at 10:00 a.m. on plaintiff's motion for a preliminary injunction. Jerry Jackson appeared on behalf of plaintiff; Eileen Sobeck appeared on behalf of defendants; and James Bowe, Jr. and Michael J. McCoy appeared on behalf of intervenor-defendants.

The court, having read and considered the extensive briefing, affidavits, administrative record and oral arguments took the motion under submission.

The Case

The court has federal question jurisdiction pursuant to Section 1331 of Title 28, and the citizen suit provision of the Endangered Species Act, at Sections 1540(g) and 1540(g)(2)(A) of Title 16.

Plaintiff, National Wildlife Federation, is a non-profit international membership organization dedicated to the preservation and study of endangered and threatened species such as the bald eagle. Plaintiff has been incorporated since 1936 under the laws of the District of Columbia and has over 73,000 dues-paying members in California.

Defendants in this action are Donald Paul Hodel, who is being sued in his official capacity as Secretary of the Interior, and Robert A. Jantzen who is being sued in his official capacity as Director of the United States Fish and Wildife Service, a sub-agency of the Department of the Interior.

In this case plaintiff is seeking to enjoin the hunting of migratory birds with lead shot in certain limited areas of five states. The injunction that plaintiff seeks would require that fifteen counties, and portions of seven other counties in these five states, either be exclusive steel shot zones or be closed to hunting for the 1985-86 season. See Appendix 1 (hereinafter (disputed areas").

Plaintiff is seeking this injunction because the use of lead shot in these disputed areas is believed to be a cause of bald eagle deaths. Significant evidence has been presented that in fact lead shot ingestion is the primary cause of bald eagle lead poisoning in the wild. The evidence indicates that most lead shot that poisons bald eagles is consumed by the eagles when they feed upon other migratory birds that are themselves either ill due to consumption of lead shot, or have been wounded or killed by lead shot but not retrieved by the hunters. Since 1976 there have been at least ninety-six (96) bald eagle deaths caused by lead poisoning. Last year alone, there were twenty-three (23) confirmed bald eagle deaths attributable to lead poisoning. Plaintiff and defendants agree that when lead poisoning does not result in the death of a blad eagle, the poisoning can disrupt the bald eagle's ability to function in the wild. Such "sublethal" lead poisoning can lead to blindness, lack of coordination, neurological dysfunctions, behavioral aberrations, and increased susceptibility to diseases.

On February 13, 1985 defendant, Fish and Wildlife Service, cognizant of its duty to protect the bald eagle, published proposed rulemaking to establish steel shot zones in all or parts of 30 counties in eight states. 50 Fed. Reg. 6017-6022 (February 13, 1985). The proposed steel shot zones were to become effective in the 1985-1986 hunting season. Defendant Fish and Wildlife Service stated therein that "there is a substantial likelihood that lead shot used by waterfowl hunters poses a threat to bald eagles" in the proposed areas.

On May 7, 1985 defendant Fish and Wildlife Service took final agency action by publishing final rulemaking establishing the steel shot zones as proposed (with variations) in three of the eight states that had originally been included in the February 13, 1985 proposal. 50 Fed. Reg. 19178-19182 (May 7, 1985). As for the other five states (California, Illinois, Missouri, Oklahoma and Oregon), defendant Fish and Wildlife Service neither required the use of steel shot in the proposed zones nor closed those zones for the 1985-86 hunting season. Id.

On May 7, 1985 defendant Fish and Wildlife Service published a "Notice of Intent" in the Federal Register. 50 Fed. Reg. 19248-19249 (May 7, 1985). This document stated that the Fish and Wildlife Service intends to "propose not to open the refuges and eagle areas . . . [in the disputed area] to waterfowl hunting during the 1986-87 hunting season unless the states take action to approve the use of non-toxic shot on those areas prior to that time." Id. at 19249. Defendant Fish and Wildlife Service stated that the proposal was necessary because its "conservation responsibilities for the bald eagle are such that the agency cannot wait indefinitely for a reduction in lead shot use in the identified areas in California, Oregon, Illinois, Missouri and Oklahoma." Id. at 19248.

Plaintiff complains that by allowing the continued hunting of migratory birds with lead shot in the disputed areas, defendants have violated the following federal statutory enactments:

(1) National Environmental policy Act [NEPA] 42 U.S.C. §§ 4321 et seq.;

(2) Endangered Species Act [ESA] 16 U.S.C. §§ 1531 et seq.;

(3) Migratory Bird Treaty Act [MBTA] 16 U.S.C. §§ 703 et seq.;

(4) Bald and Golden Eagle Protection Act [B&GEPA] 16 U.S.C. §§ 668 et seq.;

(5) Administrative Procedure Act [APA] 5 U.S.C. §§ 701 et seq.

National Environmental Policy Act Analysis

Plaintiff contends that NEPA has been violated because defendants established the 1985-1986 lead shot hunting season in the disputed areas without first preparing an Environmental Impact Statement (EIS) that would sustain their decision. "NEPA requires federal agencies to prepare an Enviornmental Impact Statement for all 'major federal actions significantly affecting the quality of the human environment.' 42 U.S.C. § 4332(2)(c) (1982). An Environmental Impact Statement must be prepared when substantial questions are raised on whether a project may cause significant degradation of the environment. City and County of San Francisco [v. United States], 615 F.2d [498] . . . 500 [10 ELR 20346] [(9th Cir. 1980)] (quoting City of Davis v. Coleman, 521 F.2d 661, 673 (9th Cir. 1975))." Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 985-986 [15 ELR 20455] (9th Cir. 1985).

Pursuant to the MBTA all hunting of migratory birds is forbidden unless and until such time as defendants issue proper rules and regulations establishing "when, to what extent, if at all, and by what means" the hunting is to occur. 16 U.S.C. §§ 703, 704. Defendants, in their opposition memorandum to plaintiff's motion and in oral argument in open court, concede that the opening of the hunting season is a "major federal action] [ significantly affecting the quality of the human environment." 48 U.S.C. § 4332(2)(c). [Federal Defendants' Brief of July 26, 1985 at pages 27-32.]¹ This concession having been made, it is all the clearer that NEPA must be fully complied with by defendants prior to their granting any approval of the opening of the 1985-1986 hunting season. See Thomas v. Peterson, 753 F.2d 754, 760 [15 ELR 20225] (9th Cir. 1985); 40 C.F.R. § 1501.2.

However, defendants appear to contend that the Environmental Impact Statements (EIS) they had prepared in 1975 and 1976 are sufficient for compliance with the NEPA requirements. As defendants point out, there is no dispute that the 1975 and 1976 EIS' were adequate, and indeed complete and exhaustive at the time they [15 ELR 20893] were prepared. However, defendants have "a continuing duty to gather and evaluate new information relevant to the environmental impacts of . . . [their] actions." Southern Oregon Citizens Against Toxic Sprays v. Clark, 720 F.2d 1475, 1480 [14 ELR 20061] (9th Cir. 1983), cert. denied, 105 S. Ct. 446 (1984). Evidence has been submitted that makes it clear that since the preparation of the 1975 and 1976 EIS's, defendants have acquired significant new information regarding the likely effects of lead shot on raptors.² Defendants basically argue that the opening of the hunting season pursuant to the MBTA is a "continuing endeavor." [Defendants' Opposition Brief of July 26, 1985 at page 28, lines 22-25.] In so arguing defendants attempt to analogize their situation to defendant in the case of Humane Society of the United States v. Watt, 551 F. Supp. 1310 [13 ELR 20530] (D.D.C. 1982), aff'd 713 F.2d 865 (D.C. Cir. 1983) (per curiam). However, the analogy fails because, as plaintiff points out, the court in the Humane Society v. Watt, supra, case found that the "new information" which was alleged to exist in that case was not in fact new.

Defendants here have made a final agency decision which constitutes "major Federal action] [ significantly affecting the quality of the human environment . . .", but have not prepared either an Environmental Assessment or an EIS prior to making that decision. 42 U.S.C. § 4321 et seq. Although an EIS is now being prepared, it is clear that the NEPA equirements that these studies be made prior to the making ofthe decision have not been met by defendants. See Foundation for North America Wild Sheep v. U.S. Department of Agriculture, 681 F.2d 1172, 1181 [12 ELR 20968] (9th Cir. 1982).³ ⁴

Endangered Species Act Analysis

The court is empowered to review alleged ESA violations pursuant to Section 706 of the APA. Pursuant to that section the court can find that defendants violated the ESA only if defendants' actions are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with [the] law." 5 U.S.C. § 706(2)(A); see also Village of False Pass v. Clark, 733 F.2d 605, 609 [14 ELR 20398] (9th Cir. 1984) (citing Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685 F.2d 678, 685 [12 ELR 21058] (D.C. Cir. 1982)). "Under this standard, administrative action is upheld if the agency has 'considered the relevant factors and articulated a rational connection between the facts found and the choice made.' Baltimore Gas & Electric Co. v. National Resources Defense Council, Inc., 462 U.S. 87, 105, 103 S. Ct. 2246, 2257, 76 L. Ed. 2d 437 [13 ELR 20544] (1983) (citation omitted)" Friends of Endangered Species, Inc. v. Jantzen, supra at 982.⁵

A. Alleged Violation of 16 U.S.C. § 1636(a)(1)

The ESA requires defendants "to use . . . all methods which are necessary to bring any endangered . . . or threatened species to the point at which" the protections of the Act "are no longer necessary." 16 U.S.C. §§ 1536(a)(1), 1532(3). This circuit considers this language to be mandatory. Carson-Truckee Water Conservancy District v. Clark, 741 F.2d 257, 261 [14 ELR 20797] (9th Cir. 1984), cert. denied, 105 S. Ct. 1842 (1985).

Defendants contend that although the duty referred to is an affirmative duty, this does not mean that defendant cannot pickand choose between a number of different projects to achieve this end. However, defendants have not clearly identified the factors which the agency considers relevant to their choosing to authorize the use of lead shot in the disputed areas. Moreover, assuming defendants correctly identified the factors which are relevant to their decision, defendants have failed to articulate a rational connection between the factors found and the choice that they made. This court, finding no clearly articulated factors considered by defendants in choosing this course of action, has no basis upon which to uphold defendants' choice.⁶

B. Alleged Violation of 16 U.S.C. § 1539(a)(1)(B)

Section 1539(a)(1)(B) of the ESA prohibits the "taking" of endangered species by degrading its habitat in a way that kills individuals of a species. 16 U.S.C. § 1539(a)(1)(B), 50 C.F.R. § 173. A "taking," as defined in Section 1532(19) of Title 16 is: "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct."

The court finds from the record submitted that the defendants' authorization of lead shot for hunting in the 1985-1986 hunting season in the disputed areas constitutes such a taking. Therefore, the court now examines defendants' July 24, 1985 statements which purports to authorize the incidental taking of bald eagles pursuant to Section 1536(b)(4) of Title 16. (Defendants' Exhibit 20). At the outset, the court notes that the statement dated July 24, was not completed until after plaintiff filed its motion for preliminary injunction in June of 1985 and pointed out the deficiency to defendants. Needless to say, defendants could not have considered this document when they were required to back in May of this year. The deficiency in the alleged Section 1536(b)(4) statement is that it simply does not fully comply with the requirements of Section 1536(b)(4) of Title 16. Section 1536(b)(4)(B)(ii) requires the following:

[The written statement shall include and must] specif[ ][y] those reasonable and prudent measures that the Secretary [of the Department of the Interior] considers necessary or appropriate to minimize . . . [the] impact [of the incidental taking] . . .

In this case, as plaintiff points out, the only "reasonable and prudent [mitigation] measures" which are specified would do nothing to mitigate or in any way minimize the incidental taking of bald eagles this coming hunting season. The mitigation measures that are in defendants' July 24, 1985 statement are all directed at the 1986-1987 hunting season, and not the 1985-1986 hunting season. It thus appears that defendants have violated Section 1539(a)(1)(B) of Title 16.⁷

Injunctive Relief Analysis

A. The Standards

The Ninth Circuit has consistently "held that, absent 'unusual circumstances,' an injunction is the appropriate remedy for a violation of NEPA's procedural requirement." Thomas v. Peterson, supra at 764. This circuit has concluded that because of the clear mandatory language of Congress in enacting NEPA, "[i]rreparable damage is presumed to flow from a failure to properly evaluate the environmental impact of a major federal action." Id.; Save Our Ecosystems v. Clark, supra at 1250. "[T]he policies underlying NEPA 'weigh the scales in favor of those seeking the suspension of all action until the Act's requirements are met . . .'" Save Our Ecosystems v. Clark, supra at 1250; quoting Aline Lake Protection Society v. Schlapfer, 518 F.2d 1089, 1090 [5 ELR 20322] (9th Cir. 1975).

In this circuit, the "unusual circumstances" that may be considered as a basis for not issuing an injunction once it is found that NEPA provisions have not been complied with are limited to situations where the issuance of the injunction would result in greater [15 ELR 20894] ecological harm than its non-issuance. See Save Our Ecosystems v. Clark, supra at 1250; American Motorcyclist Association v. Watt, 714 F.2d 962 (9th Cir. 1983); Alpine Lake Protection Society v. Schlapfer, supra at 1090.

The court also recognizes that the analysis used to determine whether an injunction should issue in ESA cases is virtually identical to the NEPA cases. "If anything, the strict substantive provisions of the ESA justify more stringent enforcement of its procedural requirements, because the procedural requirements are designed to ensure compliance with the substantive provisions." Thomas v. Peterson, supra at 764.

B. Probability of Success

The court has reviewed plaintiff's numerous claims and has attempted to determine its probability of success on the merits. From this court's review of the case it has become apparent that plaintiff has shown a substantial likelihood of success on the merits in a number of its claims. Specifically, as the preceding analysis indicates, plaintiff has shown a substantial likelihood of success on the merits on its NEPA claim, and on two ESA claims.

C. Analysis

The court, having found that plaintiff has shown a likelihood of success of the merits on its claim that defendants have violated both NEPA and ESA must determine if in fact an injunction should issue. In this circuit, as stated above, if the court finds a violation of NEPA or ESA an injunction should issue unless "unusual circumstances" exist. The particular type of circumstances that this circuit considers as "unusual circumstances" are where the ecological harm caused by the granting of an injunction would be greater than if no injunction issued. In this case there are only two possible "unusual circumstances" which might occur.

First, the injunction which plaintiff asks this court to issue may dissuade some sportsmen from hunting. At first blush, this may not appear to be an "unusual circumstance." However, sportsmen, in order to hunt waterfowl, are required to purchase a hunting license. The funds generated by the licensing of sportsmen are used by both the state and federal governments to provide and preserve waterfowl habitat. Thus, the issuance of an injunction may ultimately affect waterfowl populations which, in turn, would reduce the bald eagles' food supply.

The second "unusual circumstance" that may occur is that the issuance of an injunction may cause state and local animosity toward the federal agencies who are named defendants in this case. This could cause a disruption in the cooperative relationship currently enjoyed by these agencies. Such a disruption could ultimately cause some harm to the waterfowl which enjoys the services of local and federal agencies.

The court finds that the claimed unusual circumstances, to the extent that they may occur at all, are not so substantial as to outweigh the harm which would occur in the absence of an injunction. Here it is clear that were the court not to enjoin the opening of the 1985-1986 hunting season in the disputed areas, the likely result would be that some bald eagles would die from lead poisoning, and others would suffer sublethal lead poisoning.

Defendants noncompliance with both NEPA and ESA is substantially more than merely a "technical" one. To not enjoin this noncompliance would be to render these Congressional enactments meaningless. Therefore, the court finds that an injunction must issue in this case.

The Injunctive Relief Order

IT IS HEREBY ORDERED that defendants, their agents, representatives, and others acting or purporting to act on their behalf are enjoined from authorizing, purporting to authorize or allowing any and all hunting of migratory birds for the 1985-1986 hunting season in the disputed areas delineated in Appendix 1 to this Memorandum and Order. However, in order to mitigate, insofar as is reasonable, the impact of this Order the court further ORDERS the following:

1. Defendants shall inform the states in which the disputed areas lie, and the sportsmen therein, that this Order has issued;

2. Defendants shall inform each state in which the disputed areas lie that if it authorizes, agrees and aids defendants to establish exclusive steel shot zones that are identical to the disputed areas within it, then the particular disputed area(s) so designated shall be opened to exclusive steel shot hunting;

3. In the event that the particular state which is listed in Appendix 1 does not agree to the exclusive steel shot zones that are identical to the disputed area(s), hunting in the disputed area(s) of that state shall not be allowed until such time as defendants comply fully with the provisions of both NEPA and the ESA;

4. The court shall be informed in writing by defendants within ten (10) days of the designation of any exclusive steel shot zones in any disputed area;

5. The court shall be informed in writing by defendants within ten (10) days of their learning of any violation of this Order and the facts and circumstances surrounding any such violation; and

6. Plaintiff shall not be required to post bond. West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971).

IT IS SO ORDERED.

Appendix 1

California

That portion of the Lower Klamath Basin (including all of Lower Klamath National Wildlife Refuge) beginning at the junction of Highway 161 (State Line Road) and the Dorris-Brownell Road at the northwest corner of Indian Tom Lake; thence south and east of the Dorris-Brownell Road as it makes a semicircle and unites again with Highway 161; thence west along Highway 161 to the point of origin at the northwest side of Indian Tom Lake. Also included is the Tule Lake National Wildlife Refuge (excluding Refuge lands on Sheepy Ridge) in the Tule Lake portion of the Klamath Basin.

Illinois

Henderson, Peoria, Fulton, Mason, Calhoun, Pike, Alexander, Jackson, Union, and Williamson Counties.

Missouri

Holt, St. Charles, Pike, and Lincoln Counties, and those portions of Chariton, Livingston, Carroll, and Linn Counties contained within the Swan Lake Goose Management Area.

Oklahoma

Sequoyah County.

Oregon

That portion of Klamath County lying west and south of a line commencing at the Oregon-California State line and proceeding along State Highways 39 and 39-140, U.S. Highway 97, and State Highway 62 to the Klamath County-Jackson County line.

1. Defendants, by way of their Answer filed after the hearing of this motion, appear to deny this concession.However, given the extensive argument in their opposition brief, defendants' oral argument, and the fact that defendant is currently preparing a Supplemental Environmental Impact Statement (SEIS), the court finds itself compelled, at least for the purposes of this motion, to find that the concession must stand.

2. The bald eagle is classified as a raptor. That is, it is a bird of prey which feeds in a manner substantially different from waterfowl. Thus, the bald eagle is not likely to ingest lead shot in the same manner as the waterfowl which were considered in either the 1975 or 1976 EIS'.

3. Intervenors' argument that closely tracks defendants' "continuing endeavor" analysis has been considered and is rejected for the same reason that this court rejects defendants' argument.

4. Plaintiff also contends that defendants violated NEPA in that they failed to generate essential information or prepare a "worst case analysis" prior to maka decision to open the 1985-1986 hunting season in the disputed areas. 40 C.F.R. § 1502.22. However, the court finds that plaintiff has failed to show that the alleged "missing data" is either essential or important to defendants' decision to open the season. Also, plaintiff contends that defendants failed to consider alternative hunting season requirements as required by NEPA. 42 U.S.C. § 4332(2)(E); 40 C.F.R. § 1502.14(a). However, a review of the total record here tends to support defendants' contention that alternatives were considered. Thus, defendants failure to publically disclose the decisionmaking does not mean that alternatives were not considered. The court, therefore, cannot find that plaintiff has a likelihood of prevailing on these two bases.

5. The bald eagle is classified as endangered in California, Illinois, Missouri and Oklahoma. It is classified as threatened in Oregon. 43 Fed. Reg. 6233 (Feb. 14, 1978).

6. Both defendants and intervenors allege that plaintiff has failed to comply with the 60 day notice provision of ESA. 16 U.S.C. § 1540(g)(2)(A). However, even if defendants and intervenors are correct, the court notes that plaintiff is not necessarily foreclosed from maintaining this ESA claim; Libby Rod & Gun Club v. Poteat, 457 F. Supp. 1177, 1185 (1978); aff'd in part, rev'd in part on other grounds, 594 F.2d 742 (1979).

7. Plaintiff also alleges that defendants have violated certain criminal provisions of both the MBTA and the B&GEPA, and the procedural requirements of Section 1536(a)(2) of Title 16 and the APA. However, because of the previous findings and the likelihood of success on the merits vis a vis those claims, the court does not, at this juncture, reach those alleged violations.