United States District Court, E.D. New York
AMERICAN BIRD CONSERVANCY, DAVID A. KRAUSS, A SUSAN SCIOLI, Plaintiffs,
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
of the New York State Attorney General Attorneys for the
Defendant, Mihir A. Desai Norman Spiegel, Assistant Attorneys
Hunsucker Goodstein P.C. Attorneys for Amicus Curiae Alley
Cat Allies, Michael D. Goodstein, Esq., Anne E. Lynch, Esq.,
MEMORANDUM OF DECISION & ORDER
D. SPATT, United States District Judge
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.
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.
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
reasons that follow, the motion to dismiss is denied.
The Relevant Statutory Provisions
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.
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).
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).
“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).
“[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. §
“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
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).
The Facts Alleged in the Complaint
following facts are drawn from the complaint. For purposes of
this motion, they are accepted as true and construed in favor
of the Plaintiffs.
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.
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.
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.
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.
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
The Feral Cats at Jones Beach
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.
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.
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.
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.
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.
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.
The Alleged Unlawful Conduct by the Commissioner
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
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.
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).”
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 . .
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. §
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 ...