FRIENDS OF ANIMALS; Predator Defense, Plaintiffs-Appellants, v. UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the United States, Defendant-Appellee
No. 15-35639
United States Court of Appeals, Ninth Circuit.
Filed January 10, 2018
Argued and Submitted October 5, 2017 Portland, Oregon
O‘SCANNLAIN, Circuit Judge:
We must decide whether the Migratory Bird Treaty Act allows the United States government to issue a permit to remove birds of one species for scientific purposes if its intent is principally to benefit another species.
Michael Ray Harris (argued) and Jennifer E. Best, Friends of Animals, Centennial, Colorado, for Plaintiffs-Appellants.
Rachel E. Heron (argued), David Shilton, and Andrew Mergen, Attorneys, Appellate Section; Coby Howell, Attorney, Wildlife & Marine Resources Section; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Diane Hoobler, Senior Attorney, Pacific Northwest, Regional Solicitor‘s Office; Philip Kline, Attorney-Advisor, Office of the Solicitor, United States Department of the Interior, Portland, Oregon; for Defendant-Appellee.
Before: Diarmuid F. O‘Scannlain, Richard A. Paez, and Carlos T. Bea, Circuit Judges.
I
A
This case arises from efforts by the United States Fish and Wildlife Service (“Service“) to balance the interests of two types of owls who compete for the same territory. The first is the northern spotted owl, whose range is from British Columbia to California but the majority of which are “found in the Cascades of Oregon and the Klamath Mountains in southwestern Oregon and northwestern California.” See Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Northern Spotted Owl, 55 Fed. Reg. 26,114, 26,115 (June 26, 1990). In 1990, the Service determined the northern spotted owl to be a threatened species pursuant to the Endangered Species Act of 1973,
A second factor in the northern spotted owl‘s population decline, however, involved another species of owl at issue in this case: the barred owl. The barred owl‘s “adaptability and aggressive nature appear to allow it to take advantage of habitat perturbations,” and it has spread from its native habitat in the eastern United States to the Northwest, where it has come greatly to outnumber the native northern spotted
This litigation arises from the Service‘s 2008 recovery plan for the northern spotted owl. Although that plan includes a significant focus on habitat preservation, the Service also concluded that “the barred owl constitutes a significantly greater threat to spotted owl recovery than was envisioned when the spotted owl was listed in 1990,” and, “[a]s a result, the Service recommend[ed] specific actions to address the barred owl threat.” One of those actions was to “[d]esign and implement large-scale control experiments in key spotted owl areas to assess the effects of barred owl removal on spotted owl site occupancy, reproduction, and survival,” experiments that the Service hoped would “substantially expand our knowledge of the ecological interactions between spotted owls and barred owls” and “identify important cause-and-effect relationships between barred owls and the population declines of spotted owls, as well as the densities at which negative effects from barred owls occur.” An updated recovery plan issued in 2011 retained this experimental action item.
To carry out the proposed study, the Service went through a notice-and-comment process to prepare an Environmental Impact Statement for the experiment. See Experimental Removal of Barred Owls To Benefit Threatened Northern Spotted Owls; Final Environmental Impact Statement, 78 Fed. Reg. 44,588 (July 24, 2013). The Service adopted an experimental design that would involve taking about 3,600 barred owls over four years, affecting about 0.05% of the barred owls’ range.1 The Service predicted that “[b]arred owl populations are anticipated to return to starting levels within 3 to 5 years of the end of ... removal.” To allow the experiment to proceed, the Service stated that it would “issue a scientific collecting permit” (the “permit“), pursuant to
B
Friends of Animals and Predator Defense (collectively, “Friends“) are not-for-profit animal advocacy organizations that objected to the experiment that would see the Service kill birds of one species to conserve another, and they filed suit in the Eastern District of California to challenge the permit allowing the taking of the barred owls. That case was dismissed for lack of standing because the only member of Friends who alleged personal injury caused by the Service‘s actions planned to visit only areas where the Service did not
Friends then filed this suit in September 2014, alleging that the permit violated the National Environmental Policy Act (“NEPA“),
Friends timely appealed.2 Here, they press only the MBTA claim.3
II
Friends’ core argument before us is that the permit was unlawful because, they say, under the MBTA, when the Service “permits take for scientific purposes, the action must be intended to advance the conservation or scientific understanding of the very species being taken.” For concise reference, we will refer to this as the “same-species theory,” and Friends’ appeal rises or falls on whether such theory is, in fact, compelled by the MBTA and the underlying international conventions on migratory birds that it implements.
A
“As always, we begin with the text of the statute.” Limtiaco v. Camacho, 549 U.S. 483, 488, 127 S.Ct. 1413, 167 L.Ed.2d 212 (2007). The MBTA makes it unlawful to take any migratory bird covered by the Act “except as permitted by regulations made as” provided in the Act.
The Secretary of the Interior has exercised the authority delegated by the MBTA to promulgate regulations governing the taking of migratory birds. Most relevant to this case is
The MBTA thus imposes few substantive conditions itself and delegates to the Secretary of the Interior broad discretion to implement the Act, discretion the Secretary has used to promulgate the regulation at issue that has no text directly supporting Friends’ proposed same-species theory. Friends do not suggest that we will find specific language in the Act itself or the implementing regulations that compel its theory.4
B
Instead, Friends argue that the underlying conventions codify the same-species theory, which is then binding on the Service through the MBTA‘s “consistency” provision, which stipulates that regulations under the Act must be “[s]ubject to the provisions and in order to carry out the purposes of the conventions.”
Friends’ principal argument in favor of the same-species theory is based on Article II of the Mexico Convention, which provides that Mexico and the United States “agree to establish laws, regulations and provisions” for, among other things, “[t]he establishment of close seasons, which will prohibit in certain periods of the year the
1
Friends’ leading argument supporting that interpretation is that the phrase “when used for scientific purposes” implies a limitation comporting with the same-species theory. As they put it, such language suggests a requirement “that a taken migratory bird be used directly for a scientific purpose, propagation or for museums.” They say that the experiment at issue fails to satisfy that requirement because “the main purpose of [it] is to ‘eliminate,’ not conserve, a protected bird,” and “very few, if any, of the ... barred owls killed will be, themselves, used for a scientific purpose, propagation or for museum[s].”
The Service responds that “all barred owls taken under the permit will be used for scientific purposes” because “[r]emoval to study effects on the surrounding environments is use for a scientific purpose.” Moreover, the Service says, the permit even satisfies Friends’ narrow definition of “use” because the permit requires that “[a]ny specimens ... possessed after the expiration of [the] permit must be transferred to [the Service] ... or donated and transferred to California Academy of Sciences Dept. of Ornithology and Mammalogy.” Therefore, says the Service, “all barred owls taken and retrieved” will “be donated to public educational and research institutions, where their remains may be the subject of additional scientific research.”
If the word “used” in the Convention does not support Friends’ position, we need not resolve whether the incidental donation of some of the taken barred owls to scientific institutions would satisfy Friends’ proposed limitation. So, we turn first to that threshold question of whether “used” implies a same-species limitation at all.
a
We begin by noting that the proposed theory Friends derive from the phrase “used for scientific purposes” is distinct from their proposed same-species limitation whereby scientific-collection permits “must be intended to advance the conservation or scientific understanding of the very species being taken.” A taken specimen could itself be used directly for a scientific purpose that does not benefit its species’ conservation or understanding. As the Service points out, in the past it has issued permits to take barn owls for research on human hearing and hummingbirds for research on flight aerodynamics. In those examples, the taken birds would themselves be used for scientific purposes. The experiments would therefore satisfy the specimen-specific theory Friends suggest based on the language in Article II(A) of the Mexico Convention. But the experiments would not satisfy a version of the same-species theory requiring that the taking also benefit the species’ conservation, because they have nothing to do with conservation. So, the principal textual argument Friends make already fails to support the limitation they initially proposed. Because the specimen-specific restriction derived from Article II(A) could also invalidate the Service‘s actions, though, we consider it on its own terms.
b
“When a word is not defined by statute, we normally construe it in accord
Webster‘s defines “to use” as “[t]o convert to one‘s service” or “to employ.” Black‘s Law Dictionary contains a similar definition: “[t]o make use of; to convert to one‘s service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of.” Indeed, over 100 years ago we gave the word “use” the same gloss, indicating that it means “to employ” or “to derive service from.”
Id. at 228-29, 113 S.Ct. 2050 (alterations in original) (internal quotation marks and citations omitted). Applying those definitions, the Mexico Convention therefore allows the taking of owls during close seasons when those owls are employed for a scientific purpose or when a scientific purpose is carried out by means of those owls.
There is some common-sense appeal to Friends’ interpretation. It would be odd to say colloquially that a bird was “employed for a scientific purpose” when the purpose of taking the bird was to procure its demise and not affirmatively to experiment with the bird or its cadaver. If the Convention drafters wanted clearly to adopt the Service‘s interpretation, language such as “taken for a scientific purpose” would have been a better fit. That being said, if we apply the broader dictionary definitions of “use,” then to “use for scientific purposes” could mean “to employ” the bird, or “to carry out” a scientific purpose “by means of” the bird, or “to derive service from” the bird for a scientific purpose. Removing a bird to procure its demise likely fits within the letter of those definitions, even if the bird (or its cadaver) is not itself the subject of scientific experiment. The question is close enough, though, that if we had to interpret the meaning of Article II(A) in isolation, the meaning of “used” might be ambiguous.
c
The surrounding text and structure of the Convention, however, decisively favor the Service‘s broader interpretation of the word “used.” Interpretation of legal text “is a holistic endeavor,” and a “provision that may seem ambiguous in isolation is often clarified by the remainder of the ... scheme,” here “because only one of the permissible meanings produces a substantive effect that is compatible” with the remainder of the treaty. United Sav. Ass‘n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988).
The text of Article II begins with: “The high contracting parties agree to establish laws, regulations and provisions to satisfy the need set forth in the preceding Article.” Mexico Convention, art. II (emphasis added). That “preceding Article” is Article I, which sets out the purposes of the Mexico Convention and envisions a broad use of protected birds. Specifically, it provides:
In order that the species may not be exterminated, the high contracting parties declare that it is right and proper to protect birds denominated as migratory ... by means of adequate methods which will permit, in so far as the respective high contracting parties may see fit, the utilization of said birds rationally for purposes of sport, food, commerce and industry.
Id., art. I.
The structure of the Convention is thus to define its scope and aims in Article I and to articulate certain measures the parties must implement to achieve those aims
Where a provision indicates it is intended to satisfy the need of preventing the extermination of protected species, it makes little sense to interpret a vague word in such provision to block a party from engaging in a bona fide scientific experiment to accomplish that very purpose. Under Friends’ interpretation, the Service could seemingly take barred owls to display them in museums but could not take them to prevent the extermination of spotted owls, even though the effect on the barred owl population would be minimal. That bizarre result runs entirely contrary to the principles articulated in Article I, which the Convention expressly says are to be implemented by the provisions in Article II.
At oral argument, Friends objected to reading Article II‘s provisions in light of Article I on the ground that the two articles have distinct roles: Article I explains what uses are generally permitted whereas Article II sets out specific uses that are not. We are cognizant of the “commonplace” rule of statutory construction “that the specific governs the general,” and we would not eviscerate a clear, specific prohibition based on general purposive language. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012) (internal quotation marks omitted). But that is not the situation before us. Instead, we must interpret vague language in Article II, which itself expressly tells us that its terms are intended to implement Article I‘s goals. In such case, the proper way to read indefinite terms in Article II is congruent with the broad purposes of Article I.
We therefore conclude that the “used for scientific purposes” exception in Article II(A) of the Mexico Convention includes taking birds to study whether their absence benefits another protected bird species. We need not decide just how far the exception extends because, read in the full context of Articles I and II, it clearly encompasses a controlled scientific study to save a threatened species covered by the Convention when that study will have only a negligible effect on the overall population of the taken species.6
2
At oral argument, Friends suggested a secondary basis to support their reading of the Mexico Convention to imply a same-species limitation: that the canon of noscitur a sociis compels such reading. There, “words grouped in a list should be given related meaning.” Third Nat‘l Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322, 97 S.Ct. 2307, 53 L.Ed.2d 368 (1977).
We find such implied limitation unpersuasive. As a threshold matter, it is not clear that the noscitur canon even applies to this list. “For the associated-words canon to apply, the terms must be conjoined in such a way as to indicate that they have some quality in common.” Scalia & Garner, supra, at 196. The terms “scientific purposes,” “propagation,” and “museums” are sufficiently distinct that there is no obvious common denominator among them. It is just as plausible that each was intended to be read distinctly as a separate exception as that they were intended to be read in concert as sharing certain elements.
Even if the noscitur canon did apply, however, we do not believe it supports Friends’ same-species theory. Perhaps the most natural reading of taking a bird “for museums” is to display or study that particular specimen itself, but “propagation” need not share that limitation. Of course, one way to use a bird for propagation is to take that bird and breed it, but it is just as plausible to promote propagation by taking a bird to clear the way for others to propagate. In fact, that is exactly what the Service is aiming to do in its study: take barred owls in order to assist the propagation of northern spotted owls. Especially when read against the backdrop of Article I‘s articulated aims to assure that protected “species may not be exterminated” and to promote a broad set of uses, we see little justification for reading “propagation” as narrowly as do Friends and then further to extend that narrow reading to limit “scientific purposes.”
3
Friends’ final argument in favor of their same-species theory based on the Mexico Convention is that the Service‘s loose definition of scientific purposes invites a slippery slope. Friends argue that under the Service‘s interpretation, “the law authorizes the killing of any migratory bird so long as the killing is for a scientific purpose, no matter how unrelated to the conservation of the species being killed.... Carried to its extreme, this position would allow for an entire migratory bird species ... to be exterminated so long as there is a scientific basis to do so, whether it is related to another animal, or even for human economic gain.”
The Service disputes that any such slippery slope exists. In this specific case, it points out that it “found that the experiment ... was a bona fide scientific study,” that it will “minimiz[e] the number of barred owls to be removed,” and that the study will “have a negligible impact on the
We are persuaded by the Service‘s suggested backstop against Friends’ parade of horribles. Reading Articles I and II of the Mexico Convention in concert, they require that the parties “establish laws, regulations and provisions” to assure that covered “species may not be exterminated.” In the event that the Service were to propose an experiment to exterminate a species protected by the Mexico Convention, Friends could point to clear text in the Convention to challenge that experiment, in addition to relying on other restrictions imposed by federal laws such as NEPA and the Administrative Procedure Act,
C
Friends also point to the Canada, Japan, and Russia Conventions to argue that they support the same-species theory. Friends provide no argument for why those Conventions—which cover neither barred nor spotted owls—are applicable. Cf. Fund for Animals v. Norton, 365 F.Supp.2d 394, 411 (S.D.N.Y. 2005), (“[A]gency action should be evaluated for compliance only as to conventions that explicitly govern the disputed bird species, not for compliance with all four conventions.“), aff‘d sub nom. Fund for Animals v. Kempthorne, 538 F.3d 124 (2d Cir. 2008). In any event, even if those Conventions did apply in this case, we see nothing in them requiring a same-species limitation when taking migratory birds for scientific purposes.
The Canada Convention provides that “the taking of migratory birds may be allowed at any time of the year for scientific, educational, propagative, or other specific purposes consistent with the conservation principles of this Convention.” Canada Convention, art. II, ¶ 3. Those conservation principles are defined as the following: “[t]o manage migratory birds internationally,” “[t]o ensure a variety of sustainable uses,” “[t]o sustain healthy migratory bird populations for harvesting needs,” “[t]o provide for and protect habitat necessary for the conservation of migratory birds,” and “[t]o restore depleted populations of migratory birds.” Id., art. II. The Japan and Russia Conventions each have similar language, although the principles in those Conventions are not expressly defined. See Japan Convention, art. III, ¶ 1; Russia Convention, art. II, ¶ 1.
No language in the defined purposes of the Canada Convention—or in the preambulatory text describing the objectives of the Japan and Russia Conventions—prevents taking a non-threatened protected species for a scientific experiment to protect a different threatened protected species. To the contrary, the defined purpose to “restore depleted populations of migratory birds” supports the Service‘s objectives in issuing the challenged permit. Those Conventions, then, do not salvage Friends’ argument in favor of a same-species limitation.
III
The Service contends that if there were ambiguity in the MBTA or underlying Conventions, we would be required to defer to its interpretation under one of several doctrines. Because the plain text of the
IV
For the foregoing reasons, the judgment of the district court is AFFIRMED.