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Titlesort ascending Citation Alternate Citation Summary Type
Fund for Animals, Inc. v. Kempthorne 472 F.3d 872 (D.C. Cir. 2006) 2006 WL 3687107 (D.C. Cir.)

A government agency was killing mute swans, because of their impact on the environment, and the plaintiffs sued, alleging that this action violated the Migratory Bird Treaty Act (that implements international treaties the United States has with Canada and Mexico). The Court found that the government agency may kill mute swans because the Migratory Bird Treaty Reform Act, implemented in 2004, modified the Migratory Bird Treaty Act to allow for the killing of non-native birds. Mute swans are non-native to the United States because they were brought over from Europe.

Case
Fund for Animals, Inc. v. Hogan 428 F.3d 1059 (D.C. Cir. 2005) 368 U.S.App.D.C. 238 (D.C. Cir 2005)

The Fund for Animals petitioned the US Fish and Wildlife Service (FWS) to list as endangered the trumpeter swans living in Wyoming, Montana, and Idaho.  The Fish and Wildlife Service denied the petition without giving a good explanation why, so the Fund for Animals sued.  The court found that because the Fish and Wildlife Service had subsequently provided a letter finding that the swans were not "markedly separated from other populations" and were part of the Rocky Mountain population, which was growing in numbers, the FWS had provided a sufficient explanation and the case against it was therefore moot. 

Case
Fund for Animals v. Kempthorne 538 F.3d 124 (C.A.2 (N.Y.),2008) 2008 WL 3542887

The Fund for Animals and others brought an action challenging public resource depredation order (PRDO) issued by the U.S. Fish and Wildlife Service concerning a species of migratory bird known as the double-crested cormorant. On appeal, the Second Circuit affirmed the grant of summary judgment, finding that the depredation order did not violate MBTA because the Order restricts the species, locations, and means by which takings could occur, thereby restricting the discretion exercised by third parties acting under the Order. Further, the depredation order did not conflict with international treaties (specifically the Mexico Convention) because the Treaty only mandates a close season only for game birds, which the parties agree do not include cormorants. Finally, the agency's adoption of the order was not arbitrary and capricious and complied with National Environmental Policy Act (NEPA).

Case
Friends of Animals v. United States Fish & Wildlife Serv. 879 F.3d 1000 (9th Cir. 2018) 85 ERC 2227, 18 Cal. Daily Op. Serv. 411, 2018 Daily Journal D.A.R. 359, 2018 WL 343754 (9th Cir. Jan. 10, 2018) Friends of Animals, a non-profit animal advocacy organization, sued the United States Fish and Wildlife Service when the Service began issuing permits that allowed the scientific taking of barred owls, both lethally and non-lethally, for the purpose of preserving the habitat of the northern spotted owl, a threatened species. The two species compete with each other in the same territory within Oregon and Northern California. Friends of Animals alleges that these permits are a violation of the Migratory Bird Treaty Act (MBTA), which limits the removal of birds from their habitat only for scientific purposes. The theory set forth by the plaintiff is referred to as the ‘same-species theory,’ meaning that the removal of a bird must be for the scientific purposes pertaining to the very species that was taken. This theory is based on language found in the Mexico Convention which is referenced in the MBTA. The lower court granted FWS' motion for summary judgment. On appeal, the Ninth Circuit affirmed the district court, holding that the plain text of the MBTA and Mexico Convention do not demand the same-species theory in the removal of a bird. Specifically, the court concluded that the “used for scientific purposes” exception in Article II(A) of the Mexico Convention includes taking birds to study whether their absence benefits another protected bird species. Case
Friends of Animals v. Clay 811 F.3d 94 (2d Cir. 2016) 2016 WL 305359 (2d Cir. Jan. 26, 2016) Friends of Animals (“FOA”) appeals an order of the United States District Court for the Eastern District of New York granting summary judgment in favor of defendants-appellees William Clay in his official capacity as a Deputy Administrator in the Department of Agriculture-APHIS and the FWS. FOA challenged FWS's issuance of a “depredation permit” to the Port Authority of New York and New Jersey authorizing the emergency “take” of migratory birds that threaten to interfere with aircraft at JFK Airport. 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.” The District Court granted summary judgment for defendant FWS. On appeal, this court affirmed that ruling. FOA pointed out that the "emergency take" regulation at 50 C.F.R. § 21.41 does not authorize FWS to issue a permit that allows the emergency take of a migratory bird irrespective of its species, but instead requires a "species-specific" inquiry. However, this court disagreed, finding that "§ 21.41 does not place Port Authority officials in the untenable position of having to choose between violating federal law and deliberately ignoring serious threats to human safety." Further, the court found the specific requirements in § 21.41 concern only applicants seeking a permit and not the FWS itself. In this situation, the court found the 2014 permit's emergency-take provision satisfied § 21.41. The District Court's order was affirmed. Case

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