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Friends of Animals v. United States Fish and Wildlife Service

United States Court of Appeals, Ninth Circuit

January 10, 2018

Friends of Animals; Predator Defense, Plaintiffs-Appellants,
United States Fish and Wildlife Service, an agency of the United States, Defendant-Appellee.

          Argued and Submitted October 5, 2017 Portland, Oregon

         Appeal from the United States District Court for the District of Oregon, D.C. No. 6:14-cv-01449-AA Ann L. Aiken, District Judge, Presiding

          Michael Ray Harris (argued) and Jennifer E. Best, Friends of Animals, Centennial, Colorado, for Plaintiffs-Appellants.

          Rachel E. Heron (argued), David Shilton, and Andrew Mergen, Attorneys, Appellate Section; Coby Howell, Attorney, Wildlife & Marine Resources Section; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Diane Hoobler, Senior Attorney, Pacific Northwest, Regional Solicitor's Office; Philip Kline, Attorney-Advisor, Office of the Solicitor, United States Department of the Interior, Portland, Oregon; for Defendant-Appellee.

          Before: Diarmuid F. O'Scannlain, Richard A. Paez, and Carlos T. Bea, Circuit Judges.


         Migratory Bird Treaty Act

         The panel affirmed the district court's summary judgment in favor of the U.S. Fish and Wildlife Service in an action brought by plaintiff animal advocacy groups challenging the Service's permit allowing the taking of the barred owl.

         Plaintiffs alleged that the permit was unlawful because under the Migratory Bird Treaty Act ("MBTA"), when the Service permits a take for scientific purposes, the action must be intended to advance the conservation or scientific understanding of the same species.

         The panel held that the MBTA imposed few substantive conditions itself, and delegated to the Secretary of the Interior broad discretion to implement the MBTA. The panel rejected plaintiffs' contention that the MBTA's underlying Conventions codified the same-species theory, which was then binding on the Service through the MBTA's "consistency" provision. Specifically, the panel held that the "used for scientific purposes" exception in Article II(A) of the Mexico Convention included taking birds to study whether their absence benefits another protected bird species. The panel also held that the canon of noscitur a sociis did not compel a reading of the Mexico Convention to imply a same-species limitation. The panel further held that Canada, Japan, and Russia Conventions, if they even applied to this case, did not require a same-species limitation when taking migratory birds for scientific purposes.

         The panel held that because the plain text of the MBTA and the Conventions did not compel a same-species limitation, the panel need not consider the question of deference to the agency's interpretation.



         We must decide whether the Migratory Bird Treaty Act allows the United States government to issue a permit to remove birds of one species for scientific purposes if its intent is principally to benefit another species.



         This case arises from efforts by the United States Fish and Wildlife Service ("Service") to balance the interests of two types of owls who compete for the same territory. The first is the northern spotted owl, whose range is from British Columbia to California but the majority of which are "found in the Cascades of Oregon and the Klamath Mountains in southwestern Oregon and northwestern California." See Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Northern Spotted Owl, 55 Fed. Reg. 26, 114, 26, 115 (June 26, 1990). In 1990, the Service determined the northern spotted owl to be a threatened species pursuant to the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq. See 55 Fed. Reg. at 26, 114. The principal reason for the decline in the population was the loss of old-growth forest habitats on which the species relies. Id.

         A second factor in the northern spotted owl's population decline, however, involved another species of owl at issue in this case: the barred owl. The barred owl's "adaptability and aggressive nature appear to allow it to take advantage of habitat perturbations, " and it has spread from its native habitat in the eastern United States to the Northwest, where it has come greatly to outnumber the native northern spotted owls. Id. at 26, 191. Barred owls' diets can overlap with spotted owls' by as much as 76%, and the more aggressive barred owl may displace spotted owls and may even physically attack them.

         This litigation arises from the Service's 2008 recovery plan for the northern spotted owl. Although that plan includes a significant focus on habitat preservation, the Service also concluded that "the barred owl constitutes a significantly greater threat to spotted owl recovery than was envisioned when the spotted owl was listed in 1990, " and, "[a]s a result, the Service recommend[ed] specific actions to address the barred owl threat." One of those actions was to "[d]esign and implement large-scale control experiments in key spotted owl areas to assess the effects of barred owl removal on spotted owl site occupancy, reproduction, and survival, " experiments that the Service hoped would "substantially expand our knowledge of the ecological interactions between spotted owls and barred owls" and "identify important cause-and-effect relationships between barred owls and the population declines of spotted owls, as well as the densities at which negative effects from barred owls occur." An updated recovery plan issued in 2011 retained this experimental action item.

         To carry out the proposed study, the Service went through a notice-and-comment process to prepare an Environmental Impact Statement for the experiment. See Experimental Removal of Barred Owls To Benefit Threatened Northern Spotted Owls; Final Environmental Impact Statement, 78 Fed. Reg. 44, 588 (July 24, 2013). The Service adopted an experimental design that would involve taking about 3, 600 barred owls over four years, affecting about 0.05% of the barred owls' range.[1] The Service predicted that "[b]arred owl populations are anticipated to return to starting levels within 3 to 5 years of the end of . . . removal." To allow the experiment to proceed, the Service stated that it would "issue a scientific collecting permit" (the "permit"), pursuant to 50 C.F.R. § 21.23, "for the lethal and non-lethal take as required under the Migratory Bird Treaty Act." The Service, through its Migratory Bird Permit Office, issued the permit to a branch of itself, the Oregon Fish and Wildlife Office. In 2014, due to delays caused by funding issues, that office requested a modified permit reducing the total take from 3, 600 to 1, 600 barred owls. The modification was granted, and a memorandum accompanying the new permit stated that "[t]he take of Barred Owls requested in this application is for bona fide scientific research" that "advances the scientific understanding of both species" of owls.


         Friends of Animals and Predator Defense (collectively, "Friends") are not-for-profit animal advocacy organizations that objected to the experiment that would see the Service kill birds of one species to conserve another, and they filed suit in the Eastern District of California to challenge the permit allowing the taking of the barred owls. That case was dismissed for lack of standing because the only member of Friends who alleged personal injury caused by the Service's actions planned to visit only areas where the Service did not plan to take barred owls and so could not show that he had "any concrete plans to visit an area that will be affected by the conduct that impairs his interests." Friends of Animals v. Jewell, No. 13-CV-02034, 2014 WL 3837233, at *5-8 (E.D. Cal. Aug. 1, 2014).

         Friends then filed this suit in September 2014, alleging that the permit violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Migratory Bird Treaty Act ("MBTA" or the "Act"), 16 U.S.C. § 703 et seq. In support of the latter claim, Friends argued that, under the MBTA, "when the [Service] permits take for scientific purposes, the action must be intended to advance the conservation of the very species being taken." The district court disagreed and granted the Service's motion for summary judgment on both the NEPA and MBTA claims. In explaining that ruling, the court concluded that "nothing" in the MBTA or the international conventions it implements limits scientific purposes to the species taken.

         Friends timely appealed.[2] Here, they press only ...

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