The opinion of the court was delivered by: Howard G. Munson, Senior United States District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff, a New York not-for-profit corporation dedicated to
environmental protection, brings this action to challenge defendant
Babbitt's and the United States Department of Interior's decision
("USDI"), through the United States Fish and Wildlife Service ("USFWS")
to issue a migratory bird depredation permit to the New York State
Department of Environmental Conservation ("NYSDEC"). The permit allows
the NYSDEC to limit the reproduction of double-crested cormorants in the
eastern basin of Lake Ontario by the taking, or killing, of unborn
birds. Issued on May 3, 1999, and in effect until February 28, 2000, it
authorized the NYSDEC: (1) to spread vegetable oil on unhatched eggs in
up to 7,500 nests on Little Galloo Island; (2) to destroy up to 500 nests
with eggs on Gull, Bass and Calf Islands; and, (3) shoot up to forty
cormorants at ten fish stocking sites. Although the double-crested
cormorant, or Phalacrocorax auritus, is protected by the Migratory Bird
Treaty Act ("MBTA"), 16 U.S.C. § 703, et seq., the USFWS issued this
permit after determining that these proposed measures would not
significantly impact the environment.
According to the NYSDEC, authorities oiled cormorant eggs as permitted
on Little Galloo Island from May 6, 1999, to July, 8 1999. Plaintiff
filed its original complaint roughly one month later, alleging that the
federal defendants — Bruce Babbitt and USDI — violated the
MBTA, National Environmental Policy Act ("NEPA"), 42 U.S.C. § 703, et
seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 553,
et seq, by issuing the depredation permit. It also alleged that the
NYSDEC violated the New York Environmental Conservation Law ("ECL") by
seeking the permit. With its complaint, plaintiff sought declaratory
judgment finding that the depredation permit violated the MBTA, NEPA and
5 U.S.C. § 706 (2)(A). It also asked for injunctive relief in the
form of an Order enjoining the federal defendants from issuing a
depredation permit for the taking of cormorants on Little Galloo Island
until they complied with the above treaties.
Shortly thereafter, this court addressed a motion by the NYSDEC to
dismiss along with plaintiffs cross-motion to amend the original
complaint. At issue in these motions was whether or not the NYSDEC was a
proper party to this lawsuit. As the original complaint was a complaint
against the state, the NYSDEC claimed sovereign immunity pursuant to the
Eleventh Amendment and asked for dismissal. Agreeing with the NYSDEC, the
court granted its motion to dismiss but allowed plaintiff to amend the
original complaint. Thereafter, plaintiff filed an amended complaint
restates the above allegations and includes defendant Cahill.
On September 1, 2000, the federal defendants filed their motion for
summary judgment. With this motion, defendants claim that plaintiff: (1)
lacks standing to pursue this action; and (2) has failed show the
requisite irreparable harm or likelihood of success on the merits to be
eligible for injunctive relief.*fn2 In response, plaintiff asserts
several bases for standing and seeks summary judgment claiming that
USFWS' decision to issue a depredation permit was an arbitrary,
capricious abuse of discretion that violated both NEPA and the MBTA. It
also offers proof that it has satisfied the requirements necessary for
injunctive relief. As the issue of plaintiffs standing is dispositive,
the court will not address defendant's irreparable harm defense.
I. Standing in NEPA Cases
Article III of the Constitution limits the authority of federal courts
to decide only actual cases and controversies. See Allen v. Wright,
468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). In order
to establish "the irreducible constitutional minimum of standing," a
plaintiff must demonstrate that: (1) he has suffered an "injury in fact"
— an invasion of a legally protected interest which is (a) concrete
and particularized, and (b) "actual or imminent, not `conjectural' or
"hypothetical;'" (2) there is a causal connection between the injury and
the conduct complained of — the injury has to be "fairly . . .
trace[able] to the challenged action of the defendant, and not . . .
th[e] result [of] the independent action of some third party not before
the court."; and (3) it must be "likely," as opposed to merely
"speculative," that the injury will be "redressed by a favorable
decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112
S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (internal citations and
quotation marks omitted).
The determination of whether Article III standing exists also must
comport with the "manner and degree of evidence required at the
successive stages of the litigation." Id., 504 U.S. at 561, 112 S.Ct. at
2136. At the summary judgment stage, a plaintiff cannot rest upon mere
allegations of injury to show standing, but must produce affidavits or
other evidence to support its claims. See Id. at 561, 112 S.Ct. at 2137.
Furthermore, the party invoking federal jurisdiction bears the burden of
establishing these elements. See Id.
Although the standing doctrine is rooted in Article III, it also
implicates prudential limitations on a court's authority to hear a case.
See Lee v. Board of Governors of the Federal Reserve System, 118 F.3d 905,
910 (2d Cir. 1997). Even if the constitutional standing requirements are
satisfied, "a court may nevertheless deny standing for prudential
reasons." Comer v. Cisneros, 37 F.3d 775, 787 (2d Cir. 1994) (quoting
Lamont v. Woods, 948 F.2d 825, 829 (2d Cir. 1991)). The Supreme Court has
developed the prudential requirements of standing and applied them in a
discretionary fashion as rules of judicial "self-restraint", Sullivan v.
Syracuse Hous. Auth., 962 F.2d 1101, 1106 (2d Cir. 1992) (quoting Barrows
v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586
(1953)), to further preserve the "`the proper — and properly
limited — role of the courts in a democratic society. Wight v.
Corporation, 219 F.3d 79, 86 (2d Cir. 2000) (quoting Allen
v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556
Due to prudential considerations, a plaintiff generally may not rely
upon the legal rights of a third-party. See Id. These considerations also
suggest that courts should not adjudicate "abstract questions of wide
public significance" which amount to "generalized grievances." Sullivan,
962 F.2d at 1106. (citations and internal quotation marks omitted).
Furthermore, it is clear that the interest asserted by a plaintiff should
be "within the zone of interests to be protected or regulated by the
statute or constitutional guarantee in ...