This case was brought the Humane Society of the United States and various coalitions of homeowner/citizens against the United States Secretary of the Interior and the Director of the Fish and Wildlife Service to prevent the implementation of defendants' decision to permit limited public deer hunting on a national wildlife refuge in Fairfax County, Virginia. On cross motions for final judgment on the record, the District Court held that the suit under Endangered Species Act was precluded by failure to give proper presuit notice. The court stated that the ESA clearly states that “written notice” of the violation must be given to the Secretary and to the violator as a condition precedent to suit. The court also found that the FWS's decision took account of relevant factors and thus was not arbitrary or capricious.
JACKSON, District Judge.
FN1. See Memorandum and Order of November 6, 1990, the findings and conclusions of which are adopted and incorporated herein.
The Secretary and FWS have moved to dismiss Count IV of the complaint on procedural grounds. Count IV purports to assert a direct cause of action under the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (“ESA”), the statute imposing the general obligation upon federal departments and agencies to “conserve” endangered species of wildlife, 16 U.S.C. § 1531(c)(1). The bald eagle is an endangered species, and ESA makes it unlawful for anyone to “take” a specimen of such species, 16 U.S.C. § 1538(a)(1)(B). FN2 It also provides expressly for its enforcement by “citizen” civil suits commenced by “any person” against any other person, including the United States and its officials, to enjoin its violation. 16 U.S.C. § 1540(g)(1)(A). The final rule, the plaintiffs allege, does nothing to “conserve” the endangered bald eagles; to the contrary, it poses a significant danger that bald eagles will be “taken,” even if inadvertently.
FN2. To “take” a species is, inter alia, to “harass” or “harm” it in any way, not merely to shoot, kill, or capture it. 16 U.S.C. § 1532(19).
FN3. The Hallstrom case proceeded under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6972 (“RCRA”), but the Supreme Court itself noted that the ESA notice provision would have compelled a similar result. 110 S.Ct. at 307, n. 1.
FN4. Defendants also move to dismiss those counts charging violations of the Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d (“BGEPA”) (Count III); and the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-711 (“MBTA”) (Count V), neither of which provide expressly for private causes of action. Plaintiffs respond that they are really proceeding in Counts III and V via the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), as a party aggrieved by agency action that is “not in accordance with law,” i.e., the BGEPA and MBTA. The Court assumes without deciding that plaintiffs may do so. But see Defenders of Wildlife v. Administrator, Environmental Protection Agency, 882 F.2d 1294 (8th Cir.1989).
Other counts in the complaint, however, are based on the Refuge Recreation Act of 1982, 16 U.S.C. § 460k et seq.; the National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. §§ 668dd, 668ee; the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347; and a FWS regulation. “Agency action” alleged to be in contravention of these statutes is presumably amenable to judicial review under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (“APA”). The parties have cross-moved for summary judgment on these remaining counts.
In reviewing the FWS' decision to open the Mason Neck Refuge to deer hunting, the Court is, of course, obliged to apply the APA standard of review, viz ., whether the agency acted “arbitrarily or capriciously, committed an abuse of discretion, or acted otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). FN5 As always under the APA, the reviewing court is expected to limit itself to the contents of the administrative record. FN6 Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). The reviewing court is also not to substitute its judgment for that of the agency. It is simply to ascertain whether *363 the agency has examined the relevant a satisfactory explanation for its actions, including a rational connection between the facts found and the choice made. Only a “clear error of judgment” may be set aside. Motor Vehicle Manufacturers Assoc. v. State Farm Mutual Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983) (quotation marks and citations omitted).
FN5. See, e.g., Humane Society of United States v. Hodel, 840 F.2d 45 (D.C.Cir.1988).
FN6. Although in theory, judicial review under the APA is confined to the administrative record, as a practical matter in this case the administrative record has been abundantly supplemented by additional filings by both sides; live testimony taken in conjunction with plaintiffs' requests for preliminary relief; the Court's own inspection on-site of the portions of the Refuge on which hunting has taken and will take place; and the prescience afforded for the future by the actual experience with the 1989 archery hunts and the 1990 shotgun hunt which the Court permitted to go forward while the case was pending.
The parties are in voluble disagreement as to how to ascertain whether a secondary use of a wildlife refuge is “compatible” with its primary purpose. FN7 Plaintiffs postulate the existence of an “almost absolute presumption” against secondary uses of wildlife refuges, a phrase derived from the case of Defenders of Wildlife v. Administrator, Environmental Protection Agency, 688 F.Supp. 1334, 1355 (D.Minn.1988), aff'd in relevant part, 882 F.2d 1294, 1299-1301 (8th Cir.1989). They also cite an earlier decision of another judge of this district court in Defenders of Wildlife v. Andrus, No. 78-1210 (D.D.C. July 14 & Aug. 18, 1978) (“ Ruby Lake ”), permanently enjoining the FWS from permitting recreational motorboating at the Ruby Lake National Wildlife Refuge in Nevada. The Ruby Lake court declared that the “burden of proof is necessarily on [the Service] to demonstrate that [recreational] use is incidental to, compatible with, and does not interfere with the primary purpose of the refuge,” and that the RRA “does not permit [FWS] to weigh or balance ... recreational interests against [that] purpose.” Defenders of Wildlife v. Andrus, No. 78-1210, slip op. at 9 (D.D.C. July 14, 1978). FN8
FN7. The RRA states that secondary uses of wildlife refuges may be regarded as “compatible” with their primary purposes if they would (1) “not prevent accomplishment of,” (2) are “not inconsistent with,” or (3) “will not interfere with” the primary purpose. 16 U.S.C. § 460k. The term is not otherwise, however, further statutorily defined.
FN8. The Ruby Lake Refuge's “primary purpose” was to serve as a breeding ground and sanctuary for migratory birds, principally waterfowl.
FN9. Plaintiffs actually find nothing about the decision to allow the hunt to be defensible. Not only is the ostensible justification offered for it specious, they contend, but the precautions taken by FWS against injuries to persons or property are inadequate or futile; the disturbance of the bald eagles' tranquility, not to mention their health, a virtual certainty; and the hunt as a means to an end, i.e., a reduction of the deer herd, as cruel as it is inefficient.
Having concluded that the deer population must be reduced, the record shows, the FWS did give thought to alternative means of doing so. Trapping and transportation were rejected as too time-consuming, labor-intensive, and costly, as was chemical sterilization of the deer. The introduction of predators was contraindicated by the proximity of human habitation. FWS was without sufficient personnel at the Refuge to do the job in-house by itself. A well-controlled public hunt was in its judgment, the optimum solution. That it would simultaneously gratify the desire of some local sportsmen for the opportunity to hunt Mason Neck was merely a felicitous by-product.
FWS then turned to the matters of the eagles' and public safety during the hunt. The hunt territory was to be limited to the inland areas, away from the eagles' preferred roosting sites near the river shore. The single extant eagles' nest would be circumscribed by a buffer zone in which neither hunting nor transit would be permitted. FN10 And boundaries would be fixed, and well-marked, to keep hunters away from dwellings and roads adjacent to the Refuge. FN11 See, generally, AR 25-42.
FN10. Several studies contained in the record suggest that any human presence, and, in particular, gunfire, disturb eagles, causing them to “flush”, or fly out of their roosts and flee from the disturbance. At the preliminary injunction hearing in November, 1990, the Court received extrinsic evidence regarding eagles' sensitivity to the presence of humans, and it concurred with the Secretary's finding that the shotgun hunt would not unduly disturb the eagles. Experience with the 1990 shotgun hunt has not disproved that conclusion.
FN11. Plaintiffs contend that the proximity of private dwellings to the Refuge, as well as a major thoroughfare which is traversed daily by school buses, makes the hunt inordinately dangerous to humans. Plaintiffs assert that the buffer zones which the FWS has established are inadequate to assure safety, because shotgun blasts can, according to plaintiffs, travel distances in excess of the buffer zones, and because certain hunters will “inevitably” either not see or will ignore the markers delineating the buffer zones.As the Court observed upon its own visit to the premises of the hunt, the hunt area is separated from homes and from the road by buffer zones of a minimum of 275 and 100 yards, respectively. The boundaries are well-marked by swatches of brightly colored material every several yards, each visible from its nearest neighbor. Additionally, all hunters wishing to participate in the hunt must attend a safety orientation session.
It is possible that some hunters may disregard the markers or disrespect the rules, but as the Court has previously observed, the fact that some people will break the rules does not demonstrate the folly of promulgating such rules in the first place. And again, experience with the 1990 shotgun hunt is reassuring.
As was true in those cases, this controversy, too, it appears, is animated primarily by the plaintiffs' fundamental philosophical and public policy disagreement with the government over the wisdom, and perhaps the morality, of the sanctioned killing of wild game on public lands ironically denominated a “wildlife refuge.” Neither wisdom nor morality, however, is countenanced as a ground upon which this Court may substitute its judgment as to the proper uses to be made of the Refuge for that of the defendants, even were it wholly in sympathy with plaintiffs.
For the foregoing reasons, therefore, it is, this 18th day of June, 1991,
ORDERED, that plaintiffs' motion for summary judgment is denied; and it is
FURTHER ORDERED, that defendants' motion to dismiss and motion for summary judgment is granted, and this case is dismissed with prejudice.