United States District Court, E.D. New York
Jennifer Barnes, FRIENDS OF ANIMALS, Denver, CO, Attorneys for Plaintiff.
Margaret M. Kolbe, of counsel LORETTA E. LYNCH, United States Attorney, Eastern District of New York, Brooklyn, NY, Attorney for Defendants.
MEMORANDUM AND ORDER
JOHN GLEESON, District Judge.
Plaintiff Friends of Animals ("FoA") brings this action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 500 et seq., challenging the defendants' actions in approving and helping to carry out a plan by which birds are killed at John F. Kennedy International Airport ("JFK") in order to prevent their interference with aircraft. Two defendants - William Clay, a Deputy Administrator in the Department of Agriculture, and Animal and Plant Health Inspection Service ("APHIS") - have moved to dismiss the complaint for lack of standing. All three defendants, including U.S. Fish and Wildlife Service ("FWS"), have also moved for summary judgment on the merits based on the administrative record.
For the reasons that follow, defendants' motion to dismiss is denied, and defendants' motions for summary judgment are granted.
The Port Authority of New York and New Jersey ("PA"), which is not a party to this case, operates JFK, located just within the bounds of New York City on the southern shore of Long Island. The airport is located immediately next to Jamaica Bay and the Jamaica Bay Wildlife Refuge. The Federal Aviation Administration ("FAA") has implemented regulations requiring airports to manage "wildlife hazard[s], " including the dangers presented when planes strike wildlife or ingest animals into their engines, or when animals are present in such numbers that there is a risk of such incidents. See 14 C.F.R. § 139.337. The PA has adopted a so-called "Bird Hazard Reduction Program" ("BHRP") to comply with these regulations and ensure safe airplane traffic at JFK. The first version of the current BHRP was adopted in 1994 and focused on the risks to aircraft posed by gulls; it was embodied in an "environmental impact statement" ("EIS") required by the National Environmental Policy Act ("NEPA"). In 2012, amendments to the BHRP were finalized, including plans to control risks from many other bird species; this was done by means of a supplemental environmental impact statement ("SEIS"). See APHIS_1-APHIS_483.
The Secretary of Agriculture is "authorized... to conduct activities and to enter into agreements with States, local jurisdictions, individuals, and public and private agencies, organizations, and institutions in the control of nuisance mammals and birds...." 7 U.S.C. § 426c. That authority is delegated to the federal Animal and Plant Health Inspection Service ("APHIS"), an agency of the Department of Agriculture. See 7 C.F.R. § 2.80(a). In turn, Wildlife Services ("WS"), which is a component of APHIS,  conducts animal control activities, including those at JFK. Animal control activities are authorized under so-called "cooperative service agreements" with local institutions and governments. Here, WS has entered into such an agreement with Port Authority: Since 1991, WS has had personnel present at JFK to shoot birds. See APHIS_43. Furthermore, WS has had a substantial role in designing the current bird control activities at the airport: it took the lead in authoring the original 1994 EIS. See APHIS_1342. WS also led the effort to expand and adapt the program, starting in 2006, and culminating in the 2012 SEIS. See See APHIS, "Supplemental Environmental Impact Statement for Gull Hazard Reduction Program at John F. Kennedy International Airport, " 71 Fed. Reg. 16547 (April 3, 2006).
Broadly, the SEIS proposes six alternatives to remedy the perceived shortcomings of the original BHRP: keeping the same measures already in place; adding some nonlethal bird-management methods both on and off the airport grounds; adding new on-airport lethal controls; adding new off-airport lethal controls; reducing or relocating a laughing gull colony close to the airport; or do all of the above except for managing the laughing gulls. See, e.g., APHIS_10-AHPIS_13. The final alternative was the one chosen.
Also relevant to this case is the Migratory Bird Treaty Act, federal legislation that implements several bilateral treaties about migratory birds. The MBTA protects covered migratory birds from numerous activities, including especially hunting or other killing, but authorizes those activities under limited circumstances. FWS is empowered under the MBTA to issue depredation permits and depredation orders, two distinct authorizations that let entities kill protected birds. FWS has long issued the Port Authority depredation permits for taking migratory birds at JFK; the two permits relevant to this case were issued on February 5, 2013, and on June 11, 2014. See 2013; permit, FWS_1520-21, DE 15-20; (2014; permit), FWS_2168-72, DE 37-3.
In December of 2013, Port Authority personnel shot and killed three snowy owls pursuant to permits issued by both FWS and the New York State Department of Environmental Conservation. This lawsuit followed.
A. Standard of Review under the APA
Plaintiff's causes of action in this case arise under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. The APA requires a court to "hold unlawful and set aside agency action, findings, and conclusions" that the court finds to be, inter alia, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In APA cases, a reviewing Article III court decides questions of law de novo. See id. § 706 ("[T]he reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action."). The court should only disturb conclusions of fact if they are "unsupported by substantial evidence, " id. § 706(2)(E), which "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Fund for Animals v. Kempthorne, 538 F.3d 124, 132 (2d Cir. 2008) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)).
As to the agency's overall decision, "[t]he task of the reviewing court... is to determine whether the agency has considered the pertinent evidence, examined the relevant factors, and articulated a satisfactory explanation for its action including whether there is a rational connection between the facts found and the choice made.'" J. Andrew Lange, Inc. v. F.A.A., 208 F.3d 389, 391 (2d Cir. 2000) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
One of FoA's claims in this case is that agency action must be set aside under the APA because the action failed to comply with the procedural requirements put in place by the National Environmental Policy Act. NEPA requires an agency to issue an environmental impact statement before taking administrative action "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). As the Second Circuit explained in Fund for Animals v. Kempthorne ,
NEPA is a procedural statute that mandates a process rather than a particular result. It does not command an agency to favor any particular course of action, but rather requires the agency to withhold its decision to proceed with an action until it has taken a hard look' at the environmental consequences. The court's role is to ensure that NEPA's procedural requirements have been satisfied, not to ...