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.
SUMMARY[*]
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.
OPINION
SCANNLAIN, CIRCUIT JUDGE.
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.
I
A
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.
B
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 ...