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American Bird Conservancy v. Harvey

United States District Court, E.D. New York

February 6, 2017

ROSE HARVEY, Commissioner, New York Office of Parks, Recreation, And Historic Preservation,

          Goodwin Procter LLP Attorneys for the Plaintiffs, Jeffrey A. Simes, Esq., Glenn S. Kerner, Esq., Jordan D. Weiss, Esq., Shaun P. DeLacy, Esq., Of Counsel

          Office of the New York State Attorney General Attorneys for the Defendant, Mihir A. Desai Norman Spiegel, Assistant Attorneys General

          Hunsucker Goodstein P.C. Attorneys for Amicus Curiae Alley Cat Allies, Michael D. Goodstein, Esq., Anne E. Lynch, Esq., Of Counsel


          ARTHUR D. SPATT, United States District Judge

         In this case, a wildlife conservation group claims that acts and omissions by the State Parks Commissioner have led to a situation where feral cats at Jones Beach are posing a risk to a threatened species of wild bird.

         The group contends that this situation violates the federal Endangered Species Act (the “Act”), 16 U.S.C. § 1531 et seq., and requires remedial action to remove the cats and thereby restore suitably protective conditions for the birds.

         Presently before the Court is a motion by the Commissioner to dismiss this action on the ground that the Plaintiffs lack standing to sue under Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(1), or, in the alternative, that the complaint fails to state a plausible claim for relief under Fed.R.Civ.P. 12(b)(6).

         For the reasons that follow, the motion to dismiss is denied.

         I. Background

         A. The Relevant Statutory Provisions

         Before addressing the specific facts alleged in the complaint, the Court finds that it will be helpful to identify certain relevant provisions of the federal legislation forming the basis of this case.

         Enacted with a Congressional recognition that some species of fish, wildlife, and plants in the United States have been, and are being depleted in such numbers that their continued existence is in question, see 16 U.S.C. § 1531(a), the Endangered Species Act “contains a variety of protections designed to save from extinction species that the Secretary of the Interior designates as endangered or threatened, ” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 690, 115 S.Ct. 2407, 2409, 132 L.Ed.2d 597 (1995).

         Under the statute, an “endangered species” is one “which is in danger of extinction throughout all or a significant portion of its range . . .” 16 U.S.C. § 1532(6). A “threatened species” is one that is likely to become an endangered species within the foreseeable future. See Id. § 1532(20). With respect to wildlife falling under either of these classifications, the Act prohibits any person from “taking” such species within the United States or its territorial seas. See Id. § 1538(1)(B).

         To “take” a species means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect [it], or to attempt to engage in any such conduct.” Id. § 1532(19).

         However, “[t]he term ‘take' is to be construed liberally . . . ‘in the broadest possible manner to include every conceivable way in which a person can ‘take' or attempt to ‘take' any fish or wildlife.' ” Strahan v. Coxe, 939 F.Supp. 963, 983 (D. Mass. 1996) (quoting Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 784 (9th Cir. 1995)). To that end, the Interior Department's implementing regulations further define “harass” and “harm, ” as those terms are used in the definition of “take.” For example, pursuant to the regulations, to “harass” is to commit “an intentional or negligent act or omission which creates a likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.

         To “harm” is to “actually kill[ ] or injure[ ] wildlife, ” including “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” Id.

         Under the statute, any civilian may commence a civil suit on his or her own behalf to enforce the Act's provisions. See Id. § 1540(g).

         B. The Facts Alleged in the Complaint

         The following facts are drawn from the complaint. For purposes of this motion, they are accepted as true and construed in favor of the Plaintiffs.

         1. The Parties

         The Plaintiff American Bird Conservancy is a non-profit organization dedicated to the conservation of birds in the Northern hemisphere. Among the group's special interests is a species known as the Piping Plover, which, for purposes of the Endangered Species Act, the United States Fish & Wildlife Service has designated as a threatened species in the Atlantic Coastal Region.

         Members of the American Bird Conservancy regularly visit Jones Beach State Park for the purpose of observing Piping Plovers. In this regard, they derive academic, recreational, aesthetic, spiritual, and other benefits from watching the courting, feeding, nesting, and chick-rearing habits of the birds.

         The individual Plaintiff David A. Krauss is a resident of Manhattan and an associate professor of science at the Borough of Manhattan Community College. Since 1983, he has led student field trips to Jones Beach to explore biodiversity and the role of parks in urban settings. He is currently studying the foraging behavior of migratory birds, including Piping Plovers. Further, as a member of the American Bird Conservancy, Mr. Krauss has observed Piping Plovers at Jones Beach for many years, and visits the park 15 to 20 times a year for this purpose.

         The individual Plaintiff Susan Scioli, a Brooklyn resident, is also a longtime member of the American Bird Conservancy and served on its Advisory Council. She too has observed Piping Plovers at Jones Beach for many years and regularly visits the park for that purpose.

         The Defendant Rose Harvey, who is sued in this case solely in her official capacity, is the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation (the “Parks Office”).

         2. The Feral Cats at Jones Beach

         Jones Beach State Park is a summer nesting site for Piping Plovers. It is also the site of at least two feral cat colonies, both of which are located within one mile of the birds' nesting areas. This, say the Plaintiffs, is a grave problem.

         Feral cats are an invasive or non-native species to Jones Beach, and one which naturally preys on birds. In this regard, aside from actually hunting the birds, the mere presence of feral cats can cause substantial behavioral changes in nearby bird populations, such as a reduction in the feeding of nesting chicks and an increased likelihood of nest failure.

         Particularly with regard to Piping Plovers, the complaint cites a 2009 report published by the United States Fish & Wildlife Service which identified feral cats as a threat to the continued existence of the species. Likewise, the Fish & Wildlife Service recognized several ways in which Piping Plovers are uniquely vulnerable to feral cats. For example, the birds' natural defense mechanism is to feign a broken wing to distract predators away from their nests and chicks, only to fly away at the last possible moment. But feral cats are more agile than the Piping Plovers' natural predators, often foiling the birds' instinctive escape plan. Also, young plovers roam the beach in search of food for 25 days before they become capable of flight. During this period, they are particularly exposed to cat predation.

         Referring to these unique vulnerabilities, the complaint cites the same 2009 Fish & Wildlife Service report for the conclusion that Piping Plover populations are sensitive to even small declines in their numbers, and each chick represents a precious hope for the future recovery of the species.

         Relevant here, the complaint also relies on a June 2015 Long Island Colonial Waterbird and Piping Plover Survey, which showed that feral cats have consistently been observed near critical Piping Plover nesting areas at Jones Beach. Similar studies performed in 2013 and 2014 also noted the presence of the cats, as well as humans feeding them.

         Further, the statistics show that feral cats ordinarily roam a distance from three to nearly five-and-a-half miles from their “home.” Thus, the Plaintiffs contend that the close proximity of the feral cat colonies to the Piping Plover nesting areas makes it reasonably certain that the cats are traveling to the nest sites and engaging in conduct that directly or indirectly contributes to decreases in the local bird population. In this regard, the Plaintiffs allege that the number of Piping Plover chicks fledged on Long Island increases with the number of feral cats trapped.

         3. The Alleged Unlawful Conduct by the Commissioner

         Neither the Commissioner nor the agency she oversees is alleged to have engaged in any direct actions aimed at furthering the situation described above. Rather, the crux of the Plaintiffs' complaint is that the Commissioner has stood idly by, while members of the public routinely feed, build shelters, and otherwise care for the feral cats at Jones Beach, which actions have allowed the cat colonies to flourish at the expense of the federally-protected Piping Plover.

         The Parks Office allegedly grants these individuals access to Jones Beach, and has taken no identifiable action to remove the cats - this despite the fact that the Commissioner is apparently aware of the threat they pose to Piping Plovers.

         For example, the complaint cites a publication, entitled “Guidelines for Feral Cat Control in State Parks, ” which the Parks Office itself has published. In relevant part, the guidelines state that “Feral Cats, whether in colonies or solitary, represent a significant concern when in proximity to the threatened and endangered species such as nesting areas of species at risk (e.g., Piping Plovers).”

         Further, in a March 17, 2015 letter to the American Bird Conservancy, the Parks Office acknowledged the presence of feral cats at Jones Beach and agreed that its “goal should be the removal of feral cats within New York State Parks.” The complaint quotes other portions of this correspondence, including an apparent admission that “there is a ‘possibility of [feral cats] harming endangered and threatened wildlife[, ] particularly the Piping Plover . . .' ”

         C. This Action

         Based on these facts, the Plaintiffs assert a single cause of action under the Act, alleging that the Commissioner's failure to remove the feral cats from Jones Beach amounts to a tacit endorsement of their presence and the consequences that flow therefrom. Thus, the Plaintiffs contend that, inasmuch as the Commissioner is effectively authorizing residents to maintain feral cat colonies that almost certainly prey on a threatened species, the Commissioner is causing a “take” of the Piping Plovers, in violation of the Act. See 15 U.S.C. § 1538(a)(1)(B), (g).

         By this action, the Plaintiffs seek: (1) a declaratory judgment finding the Commissioner, and by extension, the Parks Office, in violation of the Endangered Species Act; (2) a mandatory injunction compelling the Parks Office to discontinue any conduct that is reasonably certain to lead to the “taking” of Piping Plovers; and (3) a mandatory injunction compelling the Parks Office to remove the feral cats and their man-made housing ...

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