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Friends of Animals v. Clay

United States Court of Appeals, Second Circuit

January 26, 2016

FRIENDS OF ANIMALS, Plaintiff-Appellant,
v.
WILLIAM CLAY, IN HIS OFFICIAL CAPACITY AS A DEPUTY ADMINISTRATOR IN THE DEPARTMENT OF AGRICULTURE, ANIMAL AND PLANT HEALTH INSPECTION SERVICES, AN AGENCY OF THE UNITED STATES, AND UNITED STATES FISH AND WILDLIFE SERVICE, AN AGENCY OF THE UNITED STATES, Defendants-Appellees

Argued: December 10, 2015.

Appeal from the United States District Court for the Eastern District of New York.

Plaintiff-appellant Friends of Animals appeals an October 3, 2014 order of the United States District Court for the Eastern District of New York (John Gleeson, Judge) granting summary judgment in favor of defendants-appellees William Clay, in his official capacity as a Deputy Administrator in the Department of Agriculture, the United States Animal and Plant Health Inspection Service, and the United States Fish and Wildlife Service. Friends of Animals brought this action challenging the Fish and Wildlife Service's issuance of a " depredation permit" to the Port Authority of New York and New Jersey, which authorizes the emergency " take" of migratory birds that threaten to interfere with aircraft at John F. Kennedy International Airport. Friends of Animals argues that federal regulations prohibit the Fish and Wildlife Service from issuing such a permit. We disagree, and accordingly AFFIRM.

MICHAEL RAY HARRIS, Friends of Animals, Centennial, CO, for Plaintiff-Appellant.

MARGARET M. KOLBE (Varuni Nelson and Sandra L. Levy, on the brief), Assistant United States Attorneys, for Robert L. Capers, United States Attorney, Eastern District of New York, Brooklyn, NY, for Defendants-Appellees.

Before: CABRANES, POOLER, and LYNCH, Circuit Judges.

OPINION

José A. Cabranes, Circuit Judge.

Plaintiff-appellant Friends of Animals (" FOA" ) appeals an October 3, 2014 order of the United States District Court for the Eastern District of New York (John Gleeson, Judge ) granting summary judgment in favor of defendants-appellees William

Page 95

Clay (" Clay" ), in his official capacity as a Deputy Administrator in the Department of Agriculture, the United States Animal and Plant Health Inspection Service (" APHIS" ), and the United States Fish and Wildlife Service (" FWS" ). FOA brought this action challenging FWS's issuance of a " depredation permit" to the Port Authority of New York and New Jersey (the " Port Authority" ). The permit authorizes the emergency " take" of migratory birds that threaten to interfere with aircraft at John F. Kennedy International Airport (" JFK" ). FOA argues that FWS's own regulations unambiguously prohibit it from issuing such a permit and that the permit should therefore be set aside as the product of agency action that was " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). FWS argues that its regulations unambiguously authorize the issuance of such a permit. On our de novo review of the District Court's grant of summary judgment, see Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007), we agree with FWS, and accordingly AFFIRM.

BACKGROUND

The taking[1] of migratory birds is governed by the Migratory Bird Treaty Act (" MBTA" ), 16 U.S.C. § 703 et seq., and regulations promulgated thereunder. The MBTA, which implements a series of treaties as federal law, see Fund for Animals v. Kempthorne, 538 F.3d 124, 126-28 (2d Cir. 2008), prohibits the taking of any bird protected by those treaties " [u]nless and except as permitted by regulations" promulgated under the statute, 16 U.S.C. § 703(a). The Secretary of the Interior is charged with " determin[ing] when . . . it is compatible with the terms of the conventions to allow" the taking of migratory birds and with " adopt[ing] suitable regulations" in accordance with those determinations. Id. § 704(a). One such regulation is 50 C.F.R. § 21.41. Under § 21.41, FWS may issue " depredation permits" that authorize the taking (or possession or transport) of migratory birds that are causing injury to certain human interests. 50 C.F.R. § 21.41.[2]

Migratory birds that congregate near airports pose a well ...


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