Friends of Animals v. United States Fish & Wildlife Service
879 F.3d 1000
| 9th Cir. | 2018Background
- Northern spotted owl listed as threatened (ESA); habitat loss and competition from invading barred owls contributed to declines.
- U.S. Fish and Wildlife Service adopted a recovery plan recommending large-scale experimental removal of barred owls to study effects on spotted owl occupancy, reproduction, and survival.
- Service prepared an EIS and issued a scientific-collecting permit under 50 C.F.R. § 21.23 authorizing lethal and nonlethal take (modified from 3,600 to 1,600 barred owls); specimens to be donated to research institutions.
- Friends of Animals and Predator Defense sued, arguing the Migratory Bird Treaty Act (MBTA) prohibits permitting scientific takes unless the taking advances conservation or understanding of the very species taken (the "same-species theory").
- District court granted summary judgment to the Service; on appeal, the Ninth Circuit reviewed only the MBTA claim and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MBTA/Conventions bar permits to take one species for scientific research principally intended to benefit a different species | MBTA (via Mexico Convention) requires that taking for "scientific purposes" must be used to advance conservation or scientific understanding of the species taken (same-species rule) | "Used for scientific purposes" includes using taken specimens or taking them to study ecological effects; Conventions permit such scientific removal to aid conservation of another species | Rejected same-species limitation; treaty text and structure allow taking for scientific study that benefits a different protected species when consistent with conservation purposes |
| Whether Article II(A) of the U.S.-Mexico migratory bird convention limits "scientific purposes" to specimen-specific uses | "Used for scientific purposes" implies specimen-specific use (e.g., direct study of the taken bird) | Text, Article I purpose, and structure allow broader uses (including removal to benefit another species) | Article II(A) read with Article I permits taking birds to study effects on other protected species; no textual same-species requirement |
| Whether other Conventions (Canada, Japan, Russia) impose same-species restriction | These conventions require conservation-consistent taking and thus support a same-species rule | Conventions' purposes (including restoring depleted populations) support experiments that restore other species | Other conventions do not compel a same-species limitation and support restoration aims |
| Whether agency deference required (Chevron) if ambiguity exists | N/A (Plaintiff argued text compels rule) | If ambiguous, agency interpretation would be owed deference | Court found no need to decide Chevron because texts do not compel plaintiff's rule; agency need not be deferred to here |
Key Cases Cited
- Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687 (interpretation of "take" under wildlife statutes)
- Smith v. United States, 508 U.S. 223 (use of dictionary to define statutory words)
- United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365 (holistic text interpretation; context clarifies ambiguity)
- RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (specific governs general canon)
- Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (agency deference framework)
- Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846 (standard of review for agency action under APA)