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April 6, 2001


The opinion of the court was delivered by: Howard G. Munson, Senior United States District Judge.



Currently before the court are two Rule 56 motions for summary judgment filed by the defendant John C. Cahill and defendant Bruce Babbitt respectively. Plaintiff opposes these motions and has filed its own cross-motion for summary judgment. For the following reasons, defendant Babbitt's and defendant Cahill's motions for summary judgment are granted and the complaint is dismissed against all remaining defendants.*fn1 Plaintiff's cross-motion is denied as moot.


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 that 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. BankAmerica 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 (1984)).

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 ...

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