MEMORANDUM OPINION
Pending before this Court is plaintiffs’ motion for a preliminary injunction. Plaintiffs ask this Court to enjoin the State of Maryland from killing 525 mute swans over the remainder of this calendar year pursuant to a depredation permit issued by the U.S. Fish and Wildlife Service (“FWS”) on August 11, 2003.
I. Parties
Plaintiff Fund for Animals is a national non-profit organization headquartered in New York City, NY, with a campaign office in Silver Spring, Maryland, and 200,-000 members nationwide. The organization is “committed to preserving animal and plant species in their natural habitats, and to preventing the abuse and exploitation of wild and domestic animals.” Compl. ¶ 4. It brings this action on its own behalf and on behalf of its members who regularly observe, photograph, and study mute swans and other migratory birds, and who would therefore suffer aesthetic harm as a result of the killing of
Plaintiff Patrick Hornberger lives on the Chesapeake Bay, in Trappe, Maryland, in an area in which a dozen or more mute swans can be found throughout the year. Id. ¶ 7. He enjoys viewing, hearing, feeding, and photographing the mute swans on and near his property, and has developed relationships with individual mating pairs. Id. He has also traveled to several other areas within the state of Maryland to interact with mute swans, and plans to do so again in the future. Id.
Plaintiff Wanda Morton lives in Easton, Maryland, and owns a farm along the Wye River, a tributary of Chesapeake Bay. Id. ¶ 10. She too enjoys viewing, hearing, feeding, and photographing mute swans on and near her property, and has become familiar with individual mating pairs, going so far as to name several of them. 1 Id.
Defendant Gale Norton is the Secretary of the Department of the Interior, and is sued in her official capacity, based on her duty to ensure that the agencies within the Department comply with the requirements of the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703-712 (2003), National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332 et seq. (2003), and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq. (2003). Id. ¶ 18. Defendant Steven Williams is the Director of the Fish and Wildlife Service, and is sued in his official capacity as the person ultimately responsible for the issuance of the permit challenged here. Id. ¶ 19.
The Maryland Department of Natural Resources (“MDNR”), the holder of the challenged permit and the state agency responsible for its implementation, was granted permission to intervene as a party defendant on August 15, 2003, with the consent of the parties. Fund for Animals v. Norton, Civil Action No. 03-1710, Order of August 15, 2003.
II. Background
The mute swan,
Cygnus olor,
is a nonnative species descended from birds imported from Europe to North America for ornamental purposes.
See Hill v. Norton,
Prior to the D.C. Circuit’s 2001 ruling in
Hill v. Norton,
in which the Court of Appeals deemed mute swans to be protected by the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703-712 (2003), primary responsibility for the management of mute swan populations fell to the states.
See Hill v. Norton,
Following the Circuit’s ruling in
Hill v. Norton,
the FWS began issuing permits authorizing the “take”
2
of mute swans to
On March 13, 2003, the state of Maryland applied to FWS for a permit authorizing it to “remove up to 1,500 adult and subadult mute swans” as part of “a comprehensive mute swan management plan that will be implemented in 2003.” See Maryland Dep’t of Natural Res. Mem. in Opp’n to Pls.’ Mot. for Prelim. Inj. (“MDNR Opp’n”) at 28, Ex. 5. Approximately a month later, Maryland published Mute Swans in Maryland: A Statewide Management Plan (April 14, 2003) (“MD Plan”). On April 17, 2003, the FWS granted Maryland’s request for a permit authorizing the killing up to 1,500 mute swans. Pls.’ Mot. at 7, Ex. 9; Def.’s Opp’n at 5.
Shortly thereafter, plaintiff Fund for Animals commenced an action challenging the issuance of the Maryland permit. Fund for Animals v. Norton, Civil Action No. 03-1049 (D.D.C.2003). The case was subsequently voluntarily dismissed in exchange for Maryland’s voluntary temporary surrender of its permit pending preparation of a NEPA Environmental Assessment (“EA”) by the FWS which would review the issuance of permits authorizing take of mute swans to a number of states along the Eastern Seaboard. Pls.’ Mot. at 7; Def.’s Opp’n at 6. During the EA process, permits issued to states other than Maryland, including Delaware, New Hampshire, New York, Michigan, Ohio, Pennsylvania, Rhode Island, Vermont, and Wisconsin remained in effect, and presumably were acted upon. Pls.’ Mot. at 7. A separate action challenging several of these permits was initiated in May of 2003, and has been consolidated with this case. Burton v. Norton, Civil Action No. 03-1102, and Fund for Animals v. Norton, Civil Action No. 03-1710, Order of August 15, 2003. Plaintiffs commenced this action on August 11, 2003, challenging all permits issued pursuant to the EA prepared in response to their previous litigation.
On July 2, 2003, FWS published a notice in the Federal Register indicating that a
Draft Environmental Assessment on the Management of Mute Swans in the Atlantic Flyway
(“Draft EA”) was available for review by written request to the agency or on the agency’s World Wide Web site, and setting a July 16, 2003 deadline for submission of written comments. 68 Fed.Reg. 39,593 (July 2, 2003). The Draft EA concluded that mute swans are causing environmental damage by consuming up to 8 lbs per day of Submerged Aquatic Vegetation (“SAV”), underwater plant communities critical to the functioning of Chesapeake Bay and other watersheds, and through foraging and nesting habits which
On August 7, 2003, the agency published a Final EA dated July 31, 2003, and issued a “Finding of No Significant Impact” (“FONSI”) and a Record of Decision (“ROD”) memorializing its conclusion that its “preferred alternative,” the issuance of depredation permits as part of an integrated population management plan contemplating “lethal take” of mute swans, combined with egg addling, 4 pinioning, 5 sterilization, and live-trapping and relocation, would have no “significant impact on the human environment,” and therefore preparation of an Environmental Impact Statement (“EIS”) was unnecessary. 68 Fed.Reg. 47,084-85. On August 11, 2003, FWS granted Maryland’s renewed application for a depredation permit, authorizing the State to kill up to 525 mute swans between August 27 and December 31, 2003. Administrative Record (“AR”) at 1801-07.
Plaintiffs in Fund for Animals v. Norton, Civil Action No. 03-1710, commenced their action the following day, and, on August 14, 2003, moved for injunctive relief. Plaintiffs ask this Court to enjoin the State of Maryland from killing any mute swans pursuant to the August 11, 2003 depredation permit, or any other, until further Order of the Court.
III. Statutory Framework
A. MBTA
Plaintiffs assert a claim pursuant to the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. §§ 703-712 (2003) and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701
et seq.
(2003). The MBTA was enacted in 1918 to implement a convention between the United States and Great Britain (on behalf of Canada) for the protection of migratory birds.
Center for Biological Diversity v. Pirie,
[ujnless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill ... anymigratory bird ... included in the terms of the [conventions between the United States and Great Britain, Mexico, Japan, and Russia.].
16 U.S.C. § 703.
Although “the MBTA provides no private cause of action against the United States government to enforce its provisions, ... the law of this Circuit is clear: a plaintiff may sue a federal agency under the APA for violations of the MBTA.”
Center for Biological Diversity v. Pirie,
Permits such as that challenged here are governed by regulations issued pursuant to the MBTA:
The MBTA authorizes the Secretary of the Interior to promulgate regulations permitting the taking of migratory birds as long as the regulations are consistent with the Convention. 16 U.S.C. § 704; 712(2). The regulations prohibit the taking, possessing, importation, exportation, transportation, selling, or purchasing of any migratory birds except as allowed by a valid permit. 50 C.F.R. § 21.11.
Center for Biological Diversity v. Pirie,
Pursuant to MBTA regulations, FWS issued a “depredation” permit authorizing Maryland to “take” mute swans as part of its overall mute swan management plan. 6 Under the applicable regulation, in order to obtain a depredation permit, the applicant must provide:
(1) A description of the area where depredations are occurring; (2) The nature of the crops or other interests being injured; (3) The extent of such injury; and (4) The particular species of migratory birds committing the injury.
50 C.F.R. § 21.41(b).
B. NEPA
Plaintiffs also assert a claim under the National Environmental Protection Act (“NEPA”), 42 U.S.C. § 4332 et seq., which requires federal agencies to prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). Such an EIS must address (1) the “environmental impact of the proposed action;” (2) any “adverse environmental effects which cannot be avoided;” (3) “alternatives to the proposed action;” (4) the balance between “local short-term use of [the human] environment and the maintenance of long-term productivity;” and (5) “any irreversible and irretrievable commitment of resources.” 42 U.S.C. § 4332(C)(i)-(v).
Under the governing regulations, promulgated by the Council on Environmental Quality (“CEQ”), generally an agency first prepares an Environmental Assessment (“EA”) to determine whether a proposed action will “significantly affect the quality of the human environment,” thus trigger
The question of whether a proposed action will “significantly affect the quality of the human environment” “requires considerations of both context and intensity.” 40 C.F.R. §§ 1501.4(b), 1508.27. The applicable regulations further define these terms as follows:
(a) Context ... means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant. ...
(b) Intensity ... refers to the severity of impact ...
Id.
With respect to intensity, the regulations go on to identify a number of factors, dubbed “significance factors,” which “should be considered in evaluating intensity”:
(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.
40 C.F.R. § 1508.27(b).
Some courts have found that “[t]he presence of one or more of these factors should result in an agency decision to prepare an EIS.”
Pub. Citizen v. Dep’t of Transp.,
IV. Motion for Preliminary Injunction
A. Standard of Review
In order to succeed on a motion for preliminary injunction, plaintiffs carry the burden of demonstrating (1) a substantial likelihood of success on the merits, (2) irreparable injury if the injunction is not granted, (3) that there will be no substantial injury to other interested parties, and (4) that the public interest would be served by the injunction.
Born Free USA v. Norton,
Recognizing that “[i]t is undisputed that the granting of preliminary injunctive relief is an extraordinary measure, and that the power to issue such exceptional relief ‘should be sparingly exercised,’ ” this Court nevertheless finds that plaintiffs have met their burden of establishing that injunctive relief is warranted in this case.
See Experience Works v. Chao,
B. Irreparable Harm
The parties are at considerable odds with respect to how irreparable harm should be measured in this case. Plaintiffs take a broad view, and assert that, when all of the depredation permits contemplated by the Final EA are considered, 67% of the mute swans currently found in the Atlantic Flyway, and 86% of the mute swans in Maryland, are at risk of being killed. Pis.’ Mot. at 41 (citing Final EA at 30). Based on their calculations, plaintiffs
Defendants counter that the only conduct relevant to the adjudication of the pending motion for preliminary injunction is FWS’ issuance of a permit authorizing Maryland to kill 525 swans between August 27, 2003 and December 31, 2003, because applications for future permits submitted by the State of Maryland, or any other state for that matter, will be reviewed individually to determine if the annual maximum take limits should be adjusted upward or downward. Def.’s Opp’n at 16, 36, MDNR Opp’n at 21-22. 7 Defendants further contend that reduction of the current Maryland mute swan population of 3600 swans by 525 individuals will result in minimal harm to plaintiffs’ interests. MDNR Opp’n at 21, 22 (“Lethal removal of 525 out of 3,600 — or 14.5% — will only result in a minimal disturbance of plaintiffs’ opportunities for swan viewing.”). MDNR, in its brief in opposition to plaintiffs’ motion, now specifies that it plans to “take” the 525 swans in question from “remote areas” where plaintiffs have not alleged that they live or travel, and therefore plaintiffs will suffer no irreparable harm whatsoever from the action authorized by the challenged permit. MDNR Opp’n at 22, n. 10.
It appears that, even if defendants’ narrower view is adopted, plaintiffs nevertheless meet their burden of demonstrating irreparable harm. In
Fund for Animals v. Clark,
the District Court granted a preliminary injunction based on the irreparable harm to plaintiffs caused by defendants’ “failure to comply with NEPA and the aesthetic injury the individual plaintiffs would suffer from seeing
or contemplating
... bison being killed in an organized hunt.”
Fund for Animals v. Clark,
Similarly, in
Fund for Animals v. Espy,
the District Court enjoined a program which would have removed 10 to 60 bison from the same bison herd, based in part on the irreparable harm such action would cause plaintiffs who enjoyed the bison “much the same way as a pet owner enjoys a pet, so that the sight,
or even the contemplation,
of treatment in the manner contemplated ... would inflict aesthetic injury upon the individual plaintiffs ... not compensable in money damages ... Thus, the injury experienced and threatened would be irreparable.”
Fund for Animals v. Espy,
It is also notable that the District Courts found irreparable harm in the Clark, Espy, and Glickman cases even though plaintiffs did not establish that the exact animals they regularly observed would be directly affected by the proposed action. See MDNR Opp’n at 20, n. 7, 22, Ex. 1, Hindeman Decl. ¶¶ 26, 28 (suggesting that swans will primarily be killed in “remote locations” “in the lower Bay, south of Rock Hall on the Eastern Shore” where plaintiffs are less likely to observe or interact with swans or suffer emotional harm from viewing a swan killing or dead swan). Furthermore, the District Courts in those cases found aesthetic injury based on the mere contemplation of a particular treatment of the animals in question, thereby undercutting defendants’ argument that plaintiffs cannot assert irreparable harm based on “removal” of swans from the viewing population when they are themselves involved in efforts to remove swans by relocating them to Europe. See MDNR Opp’n at 21 n. 9.
MDNR’s contention that plaintiffs’ failure to allege irreparable emotional harm arising from the issuance of depredation permits to other states in the Atlantic Flyway authorizing the killing of close to 1,000 mute swans this year is fatal to their claim of irreparable harm in this case is without merit. See MDNR Opp’n at 19 n.7. Plaintiffs in this case claim, for the purposes of their request for injunctive relief precluding action pursuant to the Maryland permit, to have developed relationships with and aesthetic interests in particular swans located in Maryland, not with all swans in the Atlantic Flyway.
Similarly, MDNR’s argument that plaintiffs have made no allegations nor presented any evidence that they have
Finally, although defendants appear to be correct in their assertion that the procedural harm arising from a NEPA violation is insufficient,
standing alone,
to constitute irreparable harm justifying issuance of a preliminary injunction, when combined with the irreparable aesthetic injuries alleged by plaintiffs, such procedural harm does bolster plaintiffs’ case for a preliminary injunction.
See Amoco Production Co. v. Village of Gambell,
Accordingly, the Court concludes that plaintiffs have clearly met their burden of establishing the existence of substantial irreparable harm to their interests absent the grant of injunctive relief maintaining the status quo during the pendency of this action.
2) Substantial harm to other parties
Defendants next argue that, even if the Court finds that plaintiffs have demonstrated irreparable harm should Maryland be allowed to act on its mute swan depredation permit, the harm to the state which would result from this Court’s grant of injunctive relief outweighs that alleged by plaintiffs. See Def.’s Opp’n at 37-40; MDNR Opp’n at 30-32. The Court disagrees, finding that defendants have not demonstrated substantial, much less irreparable, harm to the interests of either the state of Maryland or the federal government should action pursuant to the permit be delayed for a short period of time pending resolution of this case on the merits.
MDNR submits that the Chesapeake Bay “is the State of Maryland’s most important natural resource and its health is of vital importance to the People of the State of Maryland.” MDNR Opp’n at 23. Defendants further argue that grant of injunctive relief precluding the state of Maryland from acting on its August 11, 2003 permit will cause irreparable harm to the Chesapeake Bay and native wildlife due to the daily degradation of SAV which will be caused by the existing population of mute swans, as well as by any increase in population arising from mating among the additional 525 swans that would survive into the coming year. MDNR Opp’n at 25, Ex. 1 (Hindman Decl.) ¶ 29 (submitting that failure to kill an additional 525 swans this year will result in as many as 250 additional breeding pairs in 2004 that will consume upwards of 2 million pounds of SAV and generate 1000 or more cygnets, ultimately “irretrievably” expanding the breeding population in three or four years); Def.’s Opp’n at 38-39.
Defendants’ repeated references to the potential for further exponential growth in the mute swan population if the state of Maryland is not permitted to proceed with
As for MDNR’s somewhat overwrought and repeated assertions that it must be allowed to act on its August 11, 2003 permit immediately in order to capitalize on the current molting season in an effort to safely kill, in the words of MDNR counsel at oral argument “the most swans in the shortest period of time with the resources available,” 9 it appears undisputed that the molting season will inevitably come again next year. See MDNR Opp’n at 26; Hindman Decl. ¶¶ 25-27. Moreover, MDNR’s counsel conceded at oral argument that Maryland has already killed 100 swans this year and 1,700 last year pursuant to permits issued by FWS prior to performance of the EA, and therefore has already been able to achieve at least part of its goal during this and the previous calendar year. MDNR has offered no compelling reason why it could not similarly take additional swans outside of the molting season following an expedited resolution of this case on the merits. In essence, MDNR’s counsel argued at the hearing on the motion for preliminary injunction that it must be permitted to proceed immediately simply because it would be “easier” to take swans now than at any other time. While the ease of carrying out state objectives is an important consideration, it does not, by any stretch of the imagination, rise to the level of irreparable or even substantial harm.
Defendants’ contention that “the longer the clock ticks, the more out-of-balance
Conversely, if defendants are allowed to proceed with their proposed action, 525 swans will irretrievably be lost. Therefore, this is not a scenario such as that in
Sierra Club v. Block,
relied upon by MDNR, in which either pursuing the proposed course of action or not pursuing it will both result in losses of varying magnitude to the same natural resource, but rather one in which the harm to defendants is more easily mitigated and remedied.
See Sierra Club v. Block,
C. Likelihood of Success on the Merits
1. NEPA
a) Standard of Review
An agency finding of no significant impact (FONSI) for a proposed course of action and its attendant conclusion that an EIS is not required under NEPA may be overturned “only if it was arbitrary, capricious or an abuse of discretion.”
Town of Cave Creek, Arizona v. Fed’l Aviation Ass’n,
Courts are directed to examine
(1) whether the agency took a “hard look” at the problem; (2) whether the agency identified the relevant areas of environmental concern; (3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and (4) if there was an impact of true significance, whether the agency convincingly established that changes in the project sufficiently reduced it to a minimum.
Town of Cave Creek, Arizona v. Fed’l Aviation Ass’n,
Plaintiffs advance several arguments in support of their contention that, notwithstanding the FWS’ expressed rationale for issuing a FONSI, its action should be set aside under the applicable four-pronged test. Without reaching any final conclusion on their merits, the Court finds that, as a whole, these arguments present a “substantial case on the merits” sufficient to warrant the grant of injunctive relief in light of plaintiffs’ compelling showing of irreparable harm.
Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc.,
b) “Hard look” requirement
FWS maintains that it took a “hard look” at the alternatives for managing the mute swan population, and, after carefully considering the information available to it, identified seven reasons why a FONSI was warranted:
C> the plan would not eradicate the mute swan population in any state;
<0> the plan posed no risk to the survival of the mute swan population in the Atlantic Flyway;
O the plan posed no threat to the viability of the mute swan population in North America or worldwide;
0> the plan would help preserve the status quo in terms of SAV density and prevent further harm to other wildlife and commercially valuable species dependent on SAV;
O the plan minimized the risk of emotional trauma and physical injuries to humans; and
O the plan would not eliminate mute swan viewing opportunities.
Def.’s Opp’n at 21-22; 68 Fed.Reg. 47085.
Notwithstanding these proffered justifications for its conclusions, the Court finds, for the following reasons, that defendants did not take the requisite “hard look” at the identified problem and proposed alternatives.
i) Public Involvement
Although there is no statutory requirement under NEPA that an agency engage in public notice and comment prior to issuing a final EA, a FONSI, or both, 10 the regulations provide that
NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken ... public scrutiny [is] essential to implementing NEPA.
40 C.F.R. § 1500.1(b). They go on to state that federal agencies
shall to the fullest extent possible ... [e]ncourage and facilitate public involvement in decisions which affect the quality of the human environment, ....
40 C.F.R. § 1500.2. The regulations further propose no fewer than nine alternate means of providing notice to the public where a proposed action will, like this one, primarily implicate local concerns. 40 C.F.R. § 1506.6(b)(3); see also Human Soc’y of the United States v. Glickman, Civil Action No. 98-1950, Tr. Hr’g Mot. T.R.O. at 11 (D.D.C. Jun. 23, 1998).
The Court finds that FWS provided the public with insufficient information regarding the proposed action and its potential environmental impacts and insufficient time in which to comment on the Draft EA. Accordingly, the agency’s approach to public involvement and consideration of what public input it did receive do not support a finding that it took a “hard look” at the problem and alternative means of addressing it.
Plaintiffs correctly point out that the public was provided with only two weeks, including an intervening holiday long weekend, or a total of nine working days, in the middle of the summer months, to review the EA and prepare and submit comments to the agency. 11 Pls.’ Mot. at 27. The final EA was prepared over a two week period between July 16 and July 31, 2003.
Although neither the statute nor the regulations prescribe any length or scope of public comment on a draft environmental assessment, courts have granted in-junctive relief based at least in part on a likelihood of success on the merits of NEPA challenges to similarly lacking public comment procedures.
See Fund for Animals v. Glickman,
Civil Action No. 99-245, Tr. Hr’g Mot. for T.R.O. at 59-60 (Feb. 12, 1999) (holding that, where an environmental assessment was prepared in six days, and the public comment period was approximately eight working days, “those kinds of time frames do not allow for any meaningful input even though a couple of dedicated people may have managed.”);
Save Our Ecosystems v. Clark,
Defendants simply respond that plaintiffs have not established that FWS did not consider any information submitted during the public comment period. FWS further asserts that it received and reviewed “thousands of comments” from 13 state wildlife agencies, 53 organizations, and 2,620 individuals during the period between the July 16, 2003 comment submission deadline and July 31, 2003, the date the Final EA was published.
12
Def.’s Opp’n at 7. Moreover, it submits that the administrative record “contains hundreds of documents.”
Id.
at 21. The Court finds that these facts cut in favor of plaintiffs, not defendants, as it is hard to believe that review of such a substantial volume of material within such a short time frame meets the requirement that the agency take a “hard look” at the problem.
See Sierra Club v. Peterson,
Plaintiffs also argue that the Draft EA did not disclose information critical to meaningful public participation, including details regarding (1) which local environments will be affected by the issued permits, (2) how many birds will be killed at individual sites, (3) the precise harms caused by birds at particular sites, and (4) local environmental impacts of killing swans at those sites. Pls.’ Mot. at 21. They further submit that absence of information regarding the sites at which the activities authorized by the permit will be carried out precludes meaningful evaluation of the effectiveness of the agency’s proposed action in achieving its stated goals, as well as the availability of alternatives. Pls.’ Mot. at 23;
cf. Gerber v. Norton,
It appears that plaintiffs are correct in this regard — both the Draft EA and the Final EA describe the “[l]oeation of the action” only as “17 States in the Atlantic Flyway.” Draft EA at 11; Final EA at 12. The agency’s rationale for not providing more location-specific information, namely that the mute swan is “legally” classified as a migratory bird, is completely undermined by its assertion, in the very next sentence, that individual birds rarely travel more than 30 miles from one location. Draft EA at 11; Final EA at 12. As far as the Maryland permit is concerned, plaintiffs are correct that defendants’ assur-
MDNR’s contention at oral argument that all of the publicaly available information regarding Maryland’s approach to mute swan management, taken together, would have provided an interested member of the public with the information necessary to determine which local sites would primarily be affected by the Maryland permit, is completely unpersuasive.
13
See also
Pls.’ Mot. Ex. 41, Letter from Peditto to Stallman (Sep. 23, 2002) (“The information used to develop the plan is and has been available to the public ever since the Mute Swan Task Force disbanded in December 2000.”) The fact that supplemental information submitted by MDNR in support of its permit application, which defendants contend provides the requisite level of specificity, was received by FWS on July 18, 2003, two days after the EA public comment period closed, and was ultimately never disclosed to the public, renders this argument all the more untenable.
See
July 11, 2003 Addendum to Application for Federal Depredation Permit (rec’d July 18, 2003); Def.’s Opp’n at 33; MDNR Opp’n at 14;
see also Anderson v. Evans,
In any event, it is clear from the record that the agency’s efforts to ensure meaningful public involvement in the EA pro
ii) Post-hoc rationalization
Plaintiffs further submit that, because the FWS had already issued 14 permits prior to performance of the EA, all of which, with the exception of Maryland’s, remained outstanding during the EA process, the NEPA process was a fruitless exercise designed to rationalize a decision already made. Pls.’ Mot. at 10, 13-15;
see
40 C.F.R. § 1502.5 (“an environmental impact statement ... shall be prepared early enough so that it can serve practically as an important contribution to the decision-making process and will not be used to rationalize or justify decisions already made.”);
Metcalf v. Daley,
Plaintiffs contend that such
posthoc
rationalization of pre-determined action renders the agency’s conduct arbitrary and capricious because it does not meet the requirement that the agency take a “hard look” at the problem before making a decision not to undertake an EIS.
See Robertson v. Methow Valley Citizens Council,
However, defendants overlook the fact that, to the extent that permits contemplated by the EA were outstanding during the performance of the EA, states could have killed mute swans, and no doubt in some cases did, thereby engaging in an “irreversible and irretrievable commitment of resources.”
See id.
(holding that such an impermissible commitment occurred where federal agency entered into a contract with an indigenous tribe to authorize and fund whaling activities prior to preparing an environmental assessment of the impacts of such activities);
see also Save the Yaak Comm. v. Block,
As in the cited cases, issuance of the permits in question prior to conducting an EA “amounted to a surrender of the Government’s right to prevent activity in the relevant area” within the scope and duration of the permit.
See Metcalf v. Daley,
Defendants’ claim that FWS’ actions are “entitled to a presumption of regularity” does not overcome these arguments that defendants failed to take the requisite “hard look” at the proposed action before issuing a FONSI, particularly because “that presumption does not shield [agency] action from a thorough, probing, in-depth review.”
See Citizens to Preserve Overton Park, Inc. v. Volpe,
c) Identification of relevant areas of environmental concern
The FONSI states that “[t]he primary goal in implementing this action is to minimize environmental damages attributed to mute swans ... [a] secondary goal — and the most effective means for achieving the first goal — is to reduce populations of feral mute swans to pre-1986 levels.” 68 Fed.Reg. 47,084.
As an initial matter, plaintiffs submit that the FWS’ proposed alternative of issuing depredation permits allowing the killing of mute swans is not a reasonable means of addressing the “principal” environmental damage alleged to be caused by mute swans, namely decreases in SAV volume. In support of this argument, plaintiffs cite to the Final EA itself, which concludes that mute swans are not “the primary, or even a major, reason for the decline in [SAV] in the Chesapeake Bay or anywhere else.” See Final EA at 77. Rather, the Final EA states that “pollution and other anthropogenic factors are largely responsible for long-term declines in the abundance of SAV.” Id.
Defendants correctly respond that this fact is not relevant to the Court’s review, given that the administrative record supports the conclusion that mute swans present at least some threat to the environment through their consumption of SAV.
See
Opp’n at 28-29. This provides the justification necessary for the agency to pursue a course of action designed to minimize the effects of mute swans on the environment, however slight. Furthermore, the primary goal of the proposed action is to “minimize the environmental damages attributed to mute swans,” by reducing the population of mute swans, not to address all of the causes of SAV depletion. Def.’s Opp’n at 18, 28. Accordingly, the Court finds that the agency has sufficiently identified the problem, and that there is a sufficient nexus between the proposed action and the agency’s stated purpose such that the agency’s action is not arbitrary,
d) Convincing ease that the impact was insignificant
Plaintiffs contend that defendants have failed to provide “convincing reasons why potential impacts are truly insignificant” as required by NEPA because a number of the “significance factors” the NEPA regulations direct agencies to consider exist with respect to the proposed action. Pls.’ Mot. at 10, 18;
NRDC v. Herrington,
Here, as in Anderson, plaintiffs “point to a number of ... significance factors [listed in 40 C.F.R. 1508.27] as pertinent to raising substantial questions concerning a possible significant effect on the environment .... ” Id. at 1017. Specifically, plaintiffs maintain that (1) the proposed action will have a significant effect on the environment, (2) “the effects on the quality of the human environment are likely to be highly controversial,” (3) “possible effects on the human environment are highly uncertain or involve unique or unknown risks,” and (4) the agency’s approach “may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.” See 40 C.F.R. § 1508.27(b)(1),(4), (5), and(6).
i) Significant effect
The NEPA regulations stipulate that an agency should consider “[ijmpacts that may be both beneficial and adverse” when evaluating whether a proposed action will have a significant impact warranting preparation of an EIS. 40 C.F.R. § 1508.27(b)(1). Plaintiffs emphasize that defendants themselves have stated that the proposed permit will have significant beneficial impacts on the environment, and submit that this is sufficient to establish the existence of a “significant effect” triggering the requirement that the FWS prepare an EIS.
See
40 C.F.R. § 1508.27(b)(1) (“significant effect may exist [where] on the balance the effect will be beneficial”);
Natural Res. Def. Council v. Herrington,
Moreover, plaintiffs maintain that even if the predicted impacts of the proposed take of 525 swans on the 3,600 strong swan population of the entire state of Maryland are likely to be minimal, the impacts may be substantially greater on the local level.
See Anderson v. Evans,
In response, defendants merely assert in a conclusory fashion in their brief that “there will not be any significant effect at all” as a result of the contemplated issuance of depredation permits authorizing the take of up to 3100 birds annually in the Atlantic Flyway, and ask the court to defer to the agency’s “broad discretion” in making determinations regarding whether a proposed action will have a significant effect. Def.’s Opp’n at 23. Defendants did not provide information regarding impacts of the proposed project on local environments, limiting their description of the affected environment to “estuaries, bays, tidal rivers, and associated freshwater and saltwater wetlands ... immediately adjacent to the coast, principally from Maine to Virginia.” Final EA at 21, 24.
16
Such an approach clearly runs afoul of the regulatory direction to consider potential impacts of proposed actions at the level of “society as a whole (human, national), the affected region, the affected interests, and
the locality."
40 C.F.R. § 1508.27(a) (emphasis added);
cf. Blue Mountains Biodiversity Project v. Blackwood,
Plaintiffs therefore appear to have raised “substantial questions” with respect to whether the issuance of depredation permits allowing for lethal take of mute swans will have significant “[ijmpacts that may be both beneficial and adverse,” particularly at the local level. At a minimum, they persuasively argue that those impacts have not been evaluated at the local level. Accordingly, they have demonstrated a likelihood of success on the merits of their claim that the agency’s conclusion that the proposed action would not have any significant effect on the environment was arbitrary, capricious, and contrary to law.
ii) Uncertain effects
Agencies are directed to consider “the degree to which the possible effects [of a proposed action] on the human environment are highly uncertain .... ” 40 C.F.R. 1508.27(b)(5). Plaintiffs likewise submit that this “significance factor” is relevant to the proposed action because its effects on local mute swans populations and local environments are not explored in the EA. Pls.’ Reply at 8.
iii) Precedent
In order for this significance factor to exist, the agency action must “establish a precedent for future actions with significant effects or represent! ] a decision in principle about a future consideration.” 40 C.F.R. § 1508.27(b)(6). A District Court in this Circuit recently stated that this significance factor is relevant where proposed agency action would “establish a precedent that would form ‘a link in a chain of bureaucratic commitment that will become progressively harder to undo the longer it continues.’ ”
Fund for Animals v. Williams,
Defendants correctly contend that the issuance of the depredation permits contemplated by the EA is hardly “precedent setting,” particularly because the FWS will reevaluate the scope of the permits on an annual basis. Def.’s Mot at 26-27. Furthermore, the “applications for permits are considered on an individual basis” thereby enabling the agency to “make a meaningful assessment with respect to future applications regardless of what action it has taken on the ... applications here.”
See id.
at 26;
Born Free USA v. Norton,
iv) Controversy
In order to establish the existence of this factor, there must be a “substantial dispute ... as to the size, nature, or effect of the major federal action rather than to the existence of opposition” to a proposal.
Town of Cave Creek v. F.A.A.,
Although the Court is not persuaded as to the existence of the “controversy” and “precedent” factors, it finds that, at a minimum, plaintiffs have raised a “substantial question” as to the existence of at least two factors. Furthermore, the Court adopts the approach of both the Ninth Circuit and several sister courts within this Circuit and finds that the existence of one or more significance factors can justify setting aside a FONSI and remanding either for further consideration of those factors or preparation of an EIS. Accordingly, as in Animal Protection Institute v. Stanton, “plaintiffs have a substantial likelihood of success on the merits and demonstrated that [FWS] has failed to make a convincing case for its finding of no significant impact because it ... has failed to consider some of the relevant factors under the CEQ regulations.” Animal Protection Institute v. Stanton, Civil Action No. 97-2563, Tr. Hr’g Mot. Prelim. Inj. at 60 (December 10, 1997).
2. MBTA
The treaties and conventions underlying the MBTA stipulate that migratory birds may only be killed under “extraordinary conditions,” where birds have “become seriously injurious to the agricultural or other interests in any particular community.”
Humane Soc’y of the U.S. v. Glickman,
Plaintiffs argue that MDNR’s application for a depredation permit failed to meet the requirements for such permits under the MBTA. Pls.’ Mot. at 11. They further submit that FWS’ failure to ensure that these requirements were met, or explain how it believes they were satisfied, prior to issuing Maryland’s permit, constitutes arbitrary and capricious agency action. Pls.’ Mot. at 37-38.
a) Area covered by permit
Plaintiffs contend that defendants’ designation of the area in which the permitted activity will be conducted as 15 of 24 counties in Maryland, covering 6000 square miles, without any further information regarding which local swan populations will be targeted and which specific areas (beyond “Chesapeake Bay and Maryland
Defendants counter that MDNR provided specific information in attachments to its March 13, 2003 and July 3, 2003 permit applications, as well as in a July 11, 2003 supplement to its permit application, regarding the precise locations in which it intends to act on its depredation permit. Def.’s Opp’n at 33. It is true that MDNR did provide specific information regarding which public lands would serve as the focus of its swan “removal” activities,
see
March 13, 2003 MDNR permit application at 4, as well as a description of the
types
of areas they would like to render “swan free,”
see Mute Swans in Maryland: A Statewide Management Plan
(April 14, 2003), Appendix D (describing proposed “swan free areas” as “[ijmportant SAV [b]eds,” SAV transplanting sites, publically owned wetlands, colonial waterbird nesting sites, and black duck nesting sites). However, the permit application itself requests that the scope of the permit remain the entire area covered by the 15 counties that abut Chesapeake Bay and other tidal waters because those are the areas in which mute swans are generally found, and the State maintains that it “cannot say with any greater degree of certainty where [the] exact locations” where swan killing will take place will be. Similarly, it cites to information from prior swan population counts which identify precise locations where swan nests have been found in the past, but does not specify the localized and specific types of damage mute swans are alleged to be causing in those areas, nor the number of birds it intends to take in each of the areas.
Compare Fund for Animals v. Williams,
b) Extent of injury
Plaintiffs next argue that defendants failed to adequately document the “extent of the injury” to “crops and other interests” caused by mute swans prior to issuing the permit. In support of their argument, plaintiffs cite to the statements of an MDNR expert who observed that “viewed from a bay-wide perspective, the biomass of SAV being consumed by [a] couple-thousand birds is almost certainly negligible.” Pis.’ Mot. at 43, Ex. 38, e-mail from Mike Naylor to Edith Thompson,
et at.
(October 18, 2000), Ex. 41, Letter to Bette Stallman from Paul Peditto, Director, Wildlife and Heritage Service, MDNR (“bay-wide impacts of the collective Maryland mute swan population are negligible at current numbers.”) (Sep. 23, 2002). In addition, plaintiffs submit that the MDNR itself has acknowledged that it has not completed ongoing scientific research aimed at quantifying the impacts of mute swans on SAV in the Chesapeake. Pis.’ Mot. at 35, Ex. 41, Letter from Peditto to Stallman (Sep. 23, 2002). Moreover, plaintiffs correctly point out that Maryland has chosen the areas to be covered by the depredation permit based on where mute swans are most likely to be found, not based on where the extent of the injury associated with their presence is greatest, although defendants do contend that areas of “high swan density” are those in which “significant decreases in SAV abundance
In light of the above, the Court is persuaded that plaintiffs have presented a “substantial case on the merits” with respect to defendants’ non-compliance with MBTA and its regulations, thereby supporting grant of injunctive relief.
D. Public interest
Turning to the final factor in the preliminary injunctive relief equation, plaintiffs argue that the public interest weighs heavily in their favor, citing to the public interest in compliance with NEPA.
See Greater Yellowstone Coalition v. Bosworth,
While defendants identify an equally strong public interest in preservation and restoration of Chesapeake Bay and its natural and commercial resources, see MDNR Opp’n at 29-30, ultimately the FWS and MDNR have not met their burden of demonstrating why reduction of the mute swan population in Maryland absolutely must begin at this time in order to achieve this long-term goal, as opposed to, say, a year in the future when the next molting season takes place. Pls.’ Mot. at 43, Ex. 41, Letter to Bette Stallman from Paul Peditto, Director, Wildlife and Heritage Service, MDNR (“bay-wide impacts of the collective Maryland mute swan population are negligible at current numbers.”); Pls.’ Reply at 4, 16-20. FWS will certainly be free to adjust the number of swans Maryland is authorized to take to reflect any resultant population increase, and MDNR has not offered any reason why it cannot engage in additional mitigation activity in order to re-establish the SAV that will be consumed by the 525 swans in question, along with any offspring they give rise to during the pendency of this action.
V. Conclusion
There is no question that all parties before the Court have the interests of the environment, and particularly of the Chesapeake Bay, at heart. Nevertheless, upon consideration of the factors which courts are directed to weigh when considering whether to grant the extraordinary relief of a preliminary injunction, this Court concludes that plaintiffs have made a compelling showing of irreparable harm, as well as a substantial case on the merits of both their National Environmental Policy Act and Migratory Bird Treaty Act claims. Furthermore, defendants have not succeeded in persuading this Court that they will suffer substantial harm or that the public interest will be adversely affected by the grant of short-term injunctive relief in this case. Accordingly, in order to preserve the
status quo
during the pendency of this action, the Court will essentially speak for the mute swans and issue a preliminary injunction prohibiting the state of Maryland from acting on the mute swan depredation permit issued by the Fish and Wildlife Service on August 11, 2003 by killing any mute swans in the state
An appropriate Order accompanies this Memorandum Opinion.
Notes
. Plaintiffs Kay Garcia and Emily Cox live in Connecticut and Massachusetts, respectively, and make similar allegations. Id. ¶¶ 12, 16. However, because they do not allege that they live in or travel to the state of Maryland, their claims are not relevant to the motion presently before the Court.
. Under the regulations promulgated pursuant to the Migratory Bird Treaty Act, to "take” a bird covered by the Act is to "pur
. Agencies may determine that certain actions qualify for a "categorical exclusion” from the requirements of NEPA where they find that the actions "do not individually or cumulatively have a significant effect on the human environment.” 40 C.F.R. § 1508.4; 40 C.F.R. § 1507.3.
. Egg addling is described in the Final EA as enjoying widespread support as a “suitable and humane technique for suppressing production of young.’’ Final EA at 17. It involves either (1) vigorously shaking mute swan eggs or puncturing a small hole in the shell and stirring the contents so as to physically destroy the developing embryo or (2) spraying food-grade oil on the surface of the egg so as to prevent the exchange of oxygen through the shell membrane and suffocate the embryo. Id. Because the eggs are not visibly destroyed, the female mute swan continues to tend to them for the duration of the normal incubation period, thereby suppressing the reproductive success of a mating pair for a year. Id.
. Pinioning involves "amputation of the outer wing,” and is "a commonly used method of flight restraint in waterfowl.” 68 Fed.Reg. 47,084.
. In the MBTA context, the term “depredation” is used with reference to predatory migratory birds. The regulations allow for permits to kill birds labeled depredatory under certain circumstances. See 50 C.F.R. § 21.41(a) ("a depredation permit is required before any person may take, possess, or transport migratory birds for depredation control purposes”).
. In the alternative, defendants submit that the EA authorizes a total take in the Atlantic Flyway of a maximum of 3,100 swans per year, or that which will bring the total flyway population down to its 1986 level of 4,675 birds, whichever is less, amounting to far smaller percentage of the current Flyway population than suggested by plaintiffs. Def.’s Opp'n at 16, 17-18, 22.
. 35 of 435 bison is approximately 8% of the herd, while 525 of 3600 mute swans is approximately 14% of the total mute swan population of Maryland by defendants’ calculations. See Def.'s Opp’n at 36.
. Molting birds are flightless and congregate in large numbers.
.
See Como Falcon Comm’y Coalition v. Dep’t of Labor,
. Plaintiffs further indicate that a number of individuals, organizations, and members of Congress asked for more time, asserting that the public comment period was "insufficient ... to provide complete and thorough comments on the assessment.” Pls.' Mot. at 27, Ex. 22, Letter from Van Hollen to FWS (July 11, 2003, Ex. 23, Letter from Sarbanes to Williams (July 17, 2003)); Pis.’ Reply at 9 n.5. The FWS’ apparent sudden rush to judgment in the face of manifest public interest in participating in the NEPA process, based on "time constraints,” the source of which is never truly identified, is somewhat puzzling. See Def.’s Opp’n at 30; Pls.’ Reply at 9 n.5.
. FWS reports that 43 of the 53 organizations who participated in the public comment period supported issuance of depredation permits, including organizations dedicated to bird and wildlife conservation such as the National Audubon Society, the American Bird Conservancy, and the Defenders of Wildlife, as well as a number of Maryland-based organizations. Def.'s Opp'n at 7. Conversely, 10 "animal rights" organizations and 2,589 individuals, many of whom submitted web-based e-mail comments from plaintiff Fund for Animals’ World Wide Web site, opposed issuance of the permits on the grounds that the proposed action is not supported by scientific evidence and is inhumane. Id. at 7-8.
. Furthermore, the materials cited to by defendants do not provide the vaunted level of specificity regarding the areas that are likely to be affected by the proposed action. For instance, Mute Swans in Maryland: A Statewide Management Plan (April 14, 2003), merely describes types of areas from which "[a]ll mute swans will be either excluded or removed,” such as "[i]mportant SAV beds,” SAV transplanting sites, publicaly owned wetlands, colonial waterbird nesting sites, and black duck nesting sites. Mute Swans in Maryland: A Statewide Management Plan (April 14, 2003), Appendix D. Although there are maps indicating where some of these locations are, there is no specific information regarding approximately how many swans will be taken from each location and what the local environmental impacts of such takings will be. Similarly, the attachments to MDNR’s March 13, 2002 permit application refer to the "Swan Free Areas” identified in Mute Swans in Maryland: A Statewide Management Plan (April 14, 2003), again describing types of areas where mute swans will be killed, but providing no further details.
. It is noteworthy, however, that both parties appear to consider the "primary area of environmental concern” to be the destruction of SAV, and not the potential adverse environmental impacts of taking 525 mute swans. This leads the FWS to devote the vast majority of its EA to discussing mute swans alleged impacts on SAV, and a mere page and a half to discussing the potential impacts of lethal takes on the mute swan population. Compare Final EA, pp. 1-14 and pp. 38-39; see Humane Soc'y of the United States v. Glickman, Civ. A. No. 98-1950, Tr. Hr’g Mot. for T.R.O. at 13-14 (noting that the EA “hardly even identifies any environmental consequences, and the vast majority of the environmental assessment is dedicated to accounting the problems that Canada geese produce for Virginia residents and businesses.”); see also Animal Protection Institute v. Stanton, Civ. A. No. 97-2563, Tr. Hr'g Mot. Prelim. Inj. at 57-58 (December 10, 1997) ("what was discussed primarily [in EA] is the relative merits and demerits, benefits and detriments, of the four alternatives, not so much as they affect the environmental concerns, but as they affect the best way to control the deer population.”). Similarly, plaintiffs devote most of their briefs to the argument that mute swans do not appreciably affect SAV volume on a large scale, and that even localized effects have not been adequately proven. In the Court’s view, once the agency has provided sufficient justification for the proposed action by alleging that mute swans have some adverse environmental effects, the appropriate focus of the EA inquiry is what environmental impacts will arise from decreasing the mute swan population either through lethal take or other means. Humane Soc’y of the United States v. Glickman, Civ. A. No. 98-1950, Tr. Hr’g Mot. for T.R.O. at 14 ("the purpose of the environmental assessment is not just to cite environmental factors that motivate the agency to adopt a plan of action but the environmental consequences that will likely follow from any action.”).
. Plaintiffs further submit that any supplemental discussion of the "significance factors” in defendants’ papers should not be considered by the Court when determining whether defendants’ discussion of these factors was adequate, as it represents
post-hoc
rationalization of the type prohibited by NEPA. Pls.’ Reply at 6 n.2, citing
Missouri Pub. Serv. Comm'n v. FERC,
. Defendants’ claim that the EA "incorpo-rat[es] specific population targets for specific locations” contained in other documents is inadequate to meet NEPA’s requirement that agencies analyze local effects in some detail prior to issuing a FONSI. See Def.’s Opp’n at 19 (citing Atlantic Flyway Mute Swan Management Plan). Moreover, the cited documents do not provide any greater detail as to specific sites within the Atlantic Flyway states where depredation permits will be implemented. Rather, they provide some detail as to locations where mute swans may be found in the state of Maryland, without identifying which of those locations it intends to focus its efforts on.