NATURAL RESOURCES DEFENSE COUNCIL, INC.; National Wildlife Federation, Plaintiffs,
v.
U.S. DEPARTMENT OF THE INTERIOR; U.S. Fish and Wildlife Service; Daniel Jorjani, in his official capacity as the person exercising authority of the Solicitor of the Interior, Defendants.
National Audubon Society; American Bird Conservancy; Center for Biological Diversity; Defenders of Wildlife, Plaintiffs,
v.
U.S. Department of the Interior; U.S. Fish and Wildlife Service; Daniel Jorjani, Defendants.
State of New York; State of California; State of Illinois; State of Maryland; Commonwealth of Massachusetts; State of New Jersey; State of New Mexico; State of Oregon, Plaintiffs,
v.
U.S. Department of the Interior; U.S. Fish and Wildlife Service; Daniel Jorjani, in his official capacity as Principal Deputy Solicitor exercising the authority of the Solicitor of the Interior, Defendants.
18-CV-4596 (VEC) 18-CV-4601 (VEC) 18-CV-8084 (VEC).
United States District Court, S.D. New York.Signed August 11, 2020.
471*471 Ian Fein, Mary Katherine Umekubo, San Francisco, CA, Mitchell S. Bernard, Natural Resources Defense Council, Inc., New York, NY, for Plaintiffs.
Andrew Edward Krause, Tomoko Onozawa, United States Attorney’s Office, New York, NY, for Defendants.
OPINION AND ORDER
VALERIE CAPRONI, United States District Judge.
It is not only a sin to kill a mockingbird, it is also a crime.[1] That has been the letter of the law for the past century. But if the 472*472 Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.
In December 2017 the Principal Deputy Solicitor of the U.S. Department of the Interior (“DOI”) issued a memorandum renouncing almost fifty years of his agency’s interpretation of “takings” and “killings” under the Migratory Bird Treaty Act of 1918 (“MBTA”). According to the DOI today, the MBTA does not prohibit incidental takes or kills because the statute applies only to activities specifically aimed at birds.
Environmental interest groups and various States brought three now-consolidated actions to vacate the memorandum and subsequent guidance issued in reliance on the memorandum. They have moved for summary judgment, and Defendants (or, collectively, “Interior”) have cross-moved. (Dkts. 68, 69, 78). This case turns on whether DOI’s interpretation of the MBTA must be set aside as contrary to law under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., or upheld as a valid exercise of agency authority. For the following reasons, Plaintiffs’ motions are GRANTED, and Interior’s motion is DENIED.
BACKGROUND[2]
In 1916 the United States and the United Kingdom, acting on behalf of Canada, entered into the Convention Between the United States and Great Britain for the Protection of Migratory Birds (“Convention”). U.S.-Gr. Brit., Aug. 16, 1916, 39 Stat. 1702 (ratified Dec. 7, 1916). The Convention had the stated purpose of “saving from indiscriminate slaughter and of insuring the preservation of such migratory birds as are either useful to man or are harmless.” Id.
Soon after, Congress implemented the Convention by passing the Migratory Bird Treaty Act. Pub. L. No. 65-186, 40 Stat. 755 (1918). Section 2 of the MBTA, as originally enacted, stated in relevant part:
unless and except as permitted by regulations… it shall be unlawful to hunt, take, capture, kill, attempt to take, capture or kill … by any means whatever… at any time or in any manner, any migratory bird, included in the terms of the convention between the United States and Great Britain for the protection of migratory birds….
In 1936 Congress amended the MBTA by, inter alia, moving the phrases “at any time” and “in any manner” to the beginning of the list of prohibited actions, adding the phrase “by any means,” and adding “pursue.” Pub. L. No. 74-728, § 3, 49 Stat. 1555, 1556.
Section 2 has not been substantially amended since. Today, it provides:
[u]nless and except as permitted by regulations… it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill … any migratory bird, any part, nest, or egg of any such bird … included in the terms of the conventions….
16 U.S.C. § 703(a).[3] Any violation of the MBTA is a misdemeanor punishable by a 473*473 fine of up to $15,000 and imprisonment for up to six months. Id. § 707(a). Further, any knowing “take” of any migratory bird “by any manner whatsoever” with intent to sell is a felony punishable by a fine of up to $2,000 and imprisonment for up to two years. Id. § 707(b).
Throughout the twentieth century, the United States entered into similar treaties with Mexico, Japan, and the Soviet Union. See Convention Between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, U.S.-U.S.S.R, Nov. 19, 1976, 29 U.S.T. 4647; Convention Between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, Japan-U.S., Mar. 4, 1972, 25 U.S.T. 3329; Convention Between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, Mex.-U.S., Feb. 7, 1936, 50 Stat. 1311.
From the early 1970s until 2017, Interior interpreted the MBTA to prohibit incidental takes and kills, imposing liability for activities and hazards that led to the deaths of protected birds, irrespective of whether the activities targeted birds or were intended to take or kill birds. AR 900. After industrial activities emerged as the most significant threat to bird populations in the latter half of the century, the Fish and Wildlife Service (“FWS”)—the agency within the DOI charged with administering and enforcing the MBTA— regularly investigated causes of incidental takes and kills; among them oil pits, power-lines, contaminated waste pools, oil spills, commercial fishing lines and nets, and wind turbines. See AR 34, 55, 615; Mowad Decl. (Dkt. 68-2) ¶¶ 8-22; see also Brief of Amici Curiae (Dkt. 70-1) (“Amicus“) at 12 (“According to the FWS, tens of millions of birds every year are killed by human-caused threats, including communication towers, wind turbines, and oil spills.”).
To conserve migratory birds and ensure compliance with the MBTA’s prohibition on “incidental take,” FWS used a range of strategies. It sent companies notice of the risks their facilities and equipment posed to migratory birds, issued industry guidance, informally negotiated remediation, and issued permits authorizing takes. See AR 38 n.205, 56, 97; Manville Decl. (Dkt. 68-3) ¶¶ 16-18; see also AR 199 (“Avian Protection Plan (APP) Guidelines” for power lines); AR 289 (“Land-Based Wind Energy Guidelines”). The agency prioritized a cooperative approach with industry over enforcement actions. See AR 901. Its enforcement efforts were aimed first at achieving voluntary compliance; when those strategies broke down, FWS pursued fines and prosecution of recalcitrant companies. See AR 38 n.205, 97; Mowad Decl. ¶ 27; Manville Decl. ¶¶ 19-22; see also AR 901 (“FWS and DOJ have been careful to bring enforcement actions only 474*474 in limited circumstances, such as when an entity has been repeatedly warned of the take, and has refused to take available measures to minimize it, or when large numbers of birds are killed (e.g., Exxon Valdez).”); Amicus at 15-17 (discussing examples). In 2015 FWS also announced its intent to begin a formal, comprehensive rulemaking process for regulating incidental take. Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 Fed. Reg. 30,032 (May 26, 2015).
In early January 2017 DOI’s Solicitor— the Department’s chief lawyer and the DOI official charged with issuing opinions setting forth DOI’s interpretation of federal statutes—issued a memorandum that reaffirmed DOI’s “long-standing interpretation that the MBTA prohibits incidental take.” AR 43-44. That memorandum, officially known as M-37041, will be referred to as the “Tompkins Opinion” after the DOI Solicitor who issued it.
Following a change in administrations and Mr. Tompkins’s departure, in December 2017 DOI’s then-Principal Deputy Solicitor, Daniel Jorjani, issued a new memorandum—M-37050—permanently withdrawing and replacing the Tompkins Opinion.[4] AR 1. This new memorandum will be referred to as the “Jorjani Opinion” or the “Opinion.”
Following the Jorjani Opinion, on April 11, 2018, the Principal Deputy Director of FWS issued a memorandum and an FAQ document to “clarify what constitutes prohibited take” under the MBTA. AR 80. That memorandum notes that FWS “is modifying some policies and practices” to “ensure consistency with the recently issued” Jorjani Opinion and directs FWS personnel to “ensure that [the agency’s] comments, recommendations, or requirements are not based on, nor imply, authority under the MBTA to regulate incidental take of migratory birds.” AR 80-81. It also provides that FWS “will not withhold a permit, request, or require mitigation based upon incidental take concerns under the MBTA.” AR 81. The FAQ sets out specific examples of activities that will trigger MBTA liability and others that will not. AR 82-86.
In May 2018 environmental Plaintiffs— Natural Resources Defense Council and the National Audubon Society with others —filed lawsuits challenging the Jorjani Opinion. In September 2018 eight States filed a similar lawsuit. All three actions assert that the Jorjani Opinion’s interpretation of the MBTA is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in violation of the APA, 5 U.S.C. § 706(2)(A), and seek vacatur of the Opinion and subsequent agency guidance. On July 31, 2019, the Court mostly denied Interior’s motion to dismiss, holding, inter alia, that Plaintiffs had adequately alleged Article III standing,[5] the Jorjani Opinion was a “final agency 475*475 action” under Section 704, and the case was ripe for judicial review.[6] Nat. Res. Def. Council, Inc. v. U.S. Dep’t of the Interior (“NRDC I”), 397 F. Supp. 3d 430, 443, 446, 450, 452 (S.D.N.Y.
…
Section 2’s clear language making it unlawful “at any time, by any means or in any manner, to … kill … any migratory bird” protected by the conventions is in direct conflict with the Jorjani Opinion. 16 U.S.C. § 703(a). Interior does not dispute the breadth of the term “kill” as ordinarily understood. According to contemporaneous dictionary definitions, to “kill” is “to deprive of life; to put to death; to slay.” Webster’s New Int’l Dictionary of the English Language 1185 & 2107 (1st ed. 1920); AR 50 n.47 (quoting Webster’s Imperial Dictionary 1697-98 (1915)). Under common law, too, kill referred to “depriving of life” regardless of whether the predicate act was directed at the victim. See, e.g., 4 William Blackstone, Commentaries 182 (discussing homicide per infortunium, “where a man, doing a lawful act, without any intention of hurt, unfortunately kills another: as where a man is at work with a hatchet, and the head thereof flies off and kills a bystander”). The term “kill” has been consistent in its breadth for the past century, including when the MBTA was amended in 1936.[13] See AR 19 n.121 (quoting Webster’s Second New Int’l Dictionary 1362 (1934)).
The Supreme Court’s decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995), also supports a broad, ordinary reading of “kill.” In Sweet Home the Supreme Court effectively rejected the argument Interior is making here in the context of interpreting the definition of “take” in the Endangered Species Act of 1973 (“ESA”). The ESA makes it unlawful to “take any [protected] species within the United States or the territorial sea of the United States” and defines the term “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Id. at 690-91, 115 S.Ct. 2407 (emphasis added); 16 U.S.C. §§ 1538(a)(1), 1532(19). The majority faulted the dissent’s “novel construction” of the statute that would have shielded from liability a hypothetical developer who drains a pond knowing that it will kill an endangered species of turtle. Sweet Home, 515 U.S. at 701 n.15, 115 S.Ct. 2407. 482*482 On the dissent’s view, “unless the developer was motivated by a desire `to get at a turtle,’ no statutory taking could occur.” Id. (citation omitted). The dissent reasoned that the statute is limited to liability for “affirmative conduct intentionally directed against a particular animal or animals”— the exact limitation the Jorjani Opinion attempts to impose on Section 2 of the MBTA. Id. Without commenting on “take” per se, the majority reasoned that the words “kill” and “harm” in the statutory definition of “take” could still “apply to such deliberate conduct.”[14] Id.
Section 2 also contains the equally expansive phrase—”by any means or in any manner”—to modify the verb “kill.” 16 U.S.C. § 703(a). That phrase denotes how a person must kill a bird to trigger the statute. Namely, it does not matter how. But Interior takes the opposite position: only “means” and “manner[s]” directed at birds are included. Interior argues that the phrase “by any means or in any manner” does not affect which activities are covered; it merely makes clear that the prohibition extends to all manners of hunting, such as with a crossbow, a rifle, or snare traps. Defs.’ Mem. of Law at 21-22; see also CITGO, 801 F.3d at 490 (advancing the same argument). That may be so with respect to the verb “hunt,” but it ignores the phrase’s modifying effect on “kill.” Section 2 states that any means of killing is a violation, which plainly includes dumping oil waste, building wind turbines, or pressure washing bridges, irrespective of whether those activities are specifically directed at wildlife.[15] See Haw. Wildlife Fund, 140 S. Ct. at 1473-74 (finding an agency interpretation “difficult to reconcile” with an environmental statute’s references to “any addition” of a pollutant into navigable waters “from any point source”). Had Interior not taken the position that the Opinion only carves out covered activities, and had the Jorjani Opinion instead 483*483 found a mental-state requirement in the MBTA, Interior’s argument would have more purchase; but Interior cannot have it both ways.
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