United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2000 Decided July 18, 2000
No. 99-5309
The Humane Society of the United States, et al.,
Appellees
v.
Dan Glickman, Secretary,
U.S. Department of Agriculture, et al.,
Appellants
Appeal from the United States District Court
for the District of Columbia
(98cv01510)
James C. Kilbourne, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Lois J. Schiffer, Assistant Attorney General, and Andrew
Mergen, Attorney.
Jonathan R. Lovvorn argued the cause for appellees.
With him on the brief was Katherine A. Meyer.
Before: Edwards, Chief Judge, Randolph and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: The "International Convention
for the Protection of Migratory Birds," 39 Stat. 1702 (1916),
between the United States and Great Britain (acting for
Canada) sought to preserve, in the words of Justice Holmes,
"a national interest of very nearly the first magnitude,"
Missouri v. Holland, 252 U.S. 416, 435 (1920). The Treaty
"recited that many species of birds in their annual migrations
traversed certain parts of the United States and of Canada,
that they were of great value as a source of food and in
destroying insects injurious to vegetation, but were in danger
of extermination through lack of adequate protection." Id. at
431. Legislation implementing the Treaty--the Migratory
Bird Treaty Act of 1918--"prohibited the killing, capturing or
selling any of the migratory birds included in the terms of the
treaty except as permitted by regulations" now administered
by the Department of the Interior.1 252 U.S. at 431. In this
appeal from the district court's order enjoining the Depart-
ment of Agriculture from violating the statute, the question is
whether the Migratory Bird Treaty Act prohibits federal
agencies from killing or taking migratory birds without a
permit from the Interior Department.
I
At the center of the controversy is the Canada goose--
Branta canadensis. With its black-stockinged neck and head
and distinctive white cheek patch, its loud resonant honking
calls, and its V-shaped flight formations, the Canada goose is
a familiar sight throughout most of North America. See
Frank C. Bellrose, Ducks, Geese and Swans of North America
142 (3d ed. 1980). The Mid-Atlantic population of Canada
__________
1 The Act originally delegated regulatory authority to the De-
partment of Agriculture. The 1939 Reorganization Plan No. II,
s 4(f), 53 Stat. 1433, transferred the functions of the Secretary of
Agriculture relating to the conservation of wildlife, game, and
migratory birds to the Secretary of the Interior.
geese, one of eleven recognized races, winters in the coastal
areas of Virginia, Delaware, and New Jersey, and returns in
the spring to the tundra zone of the Ungava Peninsula in
Quebec, its traditional summer breeding grounds. See id. at
144-45. In recent years, however, large flocks of Canada
geese have stopped migrating, preferring to breed, nest and
rear their young in the coastal states of the middle Atlantic
region. The Commonwealth of Virginia has become a host to
many of these full-time residents. In 1991, an estimated
66,169 Canada geese lived year round in Virginia. By 1998
Virginia's resident goose population had quadrupled to
254,000. See Wildlife Services, Animal and Plant Health
Inspection Service, U.S. Dep't of Agriculture, Environmental
Assessment for the Management of conflicts associated with
non-migratory (resident) Canada geese, migratory Canada
geese, and urban/suburban ducks in the Commonwealth of
Virginia s 2.1, at 6 (Mar. 30, 1999) ("Environmental Assess-
ment"). In the same year, only 70,000 migratory Canada
geese wintered over in Virginia, see id. tbl.5, at 18, a number
not much larger than the migratory population in the 1970s,
see Bellrose, supra, at 148.
Residential owners, farmers, government officials and
many others are deeply concerned about the exploding popu-
lation of Canada geese. Browsing by Virginia's resident
geese has reduced state-wide yields of cereal grains, peanuts,
soybeans and corn. Goose droppings have spoiled water
quality around beaches and wetlands, and interfered with the
enjoyment of parks and ball fields. The geese have damaged
gardens, lawns and golf courses. Their fecal deposits threat-
en to contaminate drinking water supplies. See Environmen-
tal Assessment s 2.1.1, at 6; s 2.1.2.1, at 7; s 2.1.3.1, at 11;
s 2.1.4, at 12. And they pose a hazard to aircraft. Resident
geese are found at most of Virginia's airports and military
bases. In 1995, a passenger jet hit ten Canada geese at
Dulles International Airport, causing $1.7 million of wing and
engine damage. See id. s 2.1.2.5, at 10. Collisions have also
occurred at other Virginia airports. And "Langley Air Force
Base and Norfolk Naval Air Station have altered, delayed,
aborted, and ceased flight operations because of
Canada geese on their field." Id.2
In response to these problems and others, the Department
of Agriculture, through its Animal Health and Inspection
Service's Wildlife Services division, instituted an "Integrated
Goose Management Program" in conjunction with Virginia
state agencies. The plan called for various measures such as
harassment, biological control, habitat alteration, repellents,
nest and egg destruction, and capture and killing. The
killings were to take place during the "summer molt"--
between mid-June and late-July--when the resident geese
cannot fly (the migratory geese are in Canada at this time of
year). An Environmental Assessment, issued on January 29,
1997, reflected the Interior Department's longstanding posi-
tion that the Migratory Bird Treaty Act restricted not only
private parties and states, but also federal agencies. Hence a
"federal Migratory Bird Depredation Permit ... would be
required and obtained for the proposed action." Animal
Damage Control, Animal and Plant Health Inspection Ser-
vice, U.S. Dep't of Agriculture, Environmental Assessment
for the Management of conflicts associated with non-
migratory (resident) Canada geese and urban/suburban mal-
lard ducks in the State of Virginia 22 (Jan. 29, 1997).
Interior's Fish and Wildlife Service (FWS) is authorized to
issue such depredation permits for migratory birds that
"bec[o]me seriously injurious to the agricultural or other
interests in any particular community." International Con-
vention for the Protection of Migratory Birds, art. VII, 39
Stat. 1702, 1704 (1916) ("International Convention"), refer-
enced in 16 U.S.C. s 704; see also 50 C.F.R. pt. 21.
In 1997, the Director of FWS issued a memorandum to
regional directors stating that federal agencies no longer
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2 Resident Canada geese and the problems they cause are not
confined to the east coast. The Washington Post reported that the
Agriculture Department, having obtained a permit from FWS, is
rounding up resident Canada geese and killing them in twelve
counties surrounding Puget Sound in Washington State. See Ben
White, Honk if You Hate Goose Droppings, Wash. Post, June 29,
2000, at A29.
needed to obtain a permit before taking or killing migratory
birds. The Humane Society of the United States, Citizens for
the Preservation of Wildlife, the Animal Protection Institute,
and three individuals thereupon filed suit against the Secre-
taries of Agriculture and Interior and other officials in those
departments seeking to enjoin implementation of the Goose
Management Plan. The district court ruled that s 703 of the
Migratory Bird Treaty Act restricted federal agencies. The
court therefore enjoined the defendants "from conducting the
Canada Goose Plan until such time as they shall obtain valid
permits to do so pursuant to the" Act. Humane Soc'y v.
Glickman, No. 98CV-1510, memorandum opinion at 21-22
(D.D.C. July 6, 1999).
II
Although Virginia's Canada geese are year-long residents,
they are members of a species that migrates and therefore
fall within the category of "migratory birds" protected by the
1916 Treaty and the Act. See 50 C.F.R. s 10.13. Protected
from whom? The district court thought s 703 of the Act
gave the answer--from everyone in the United States, includ-
ing federal agencies. The provision reads:
Unless and except as permitted by regulations made as
hereinafter provided in this subchapter, it shall be unlaw-
ful at any time, by any means or in any manner, to
pursue, hunt, take, capture, kill, attempt to take, capture,
or kill, possess, offer for sale, sell, offer to barter, barter,
offer to purchase, purchase, deliver for shipment, ship,
export, import, cause to be shipped, exported, or import-
ed, deliver for transportation, transport or cause to be
transported, carry or cause to be carried, or receive for
shipment, transportation, carriage, or export, any migra-
tory bird, any part, nest, or egg of any such bird, or any
product, whether or not manufactured, which consists, or
is composed in whole or in part, of any such bird or any
part, nest, or egg thereof, included in the terms of the
conventions between the United States and Great Britain
for the protection of migratory birds concluded August
16, 1916 (39 Stat. 1702)....
16 U.S.C. s 703. As legislation goes, s 703 contains broad
and unqualified language--"at any time," "by any means," "in
any manner," "any migratory bird," "any part, nest, or egg of
any such bird," "any product ... comprised in whole or part,
of any such bird." The one exception to the prohibition is in
the opening clause--"Unless and except as permitted by
regulations made as hereinafter provided in this subchap-
ter...." For migratory game birds, of which the Canada
goose is one, the exception gives the Interior Department
authority to regulate hunting seasons and bag limits. Article
II of the Treaty itself required a closed season--no hunting of
these birds--between March 10 and September 1, the typical
period when the birds breed, molt and raise their young. In
addition to issuing hunting regulations, see, e.g., 50 C.F.R. pt.
20; id. s 20.105, the Secretary of the Interior may issue
permits for killing Canada geese and other migratory birds if
this is shown to be "compatible with the terms of the [Migra-
tory Bird] conventions."3 16 U.S.C. s 704. As we have said,
Article VII of the Treaty contemplated that permits allowing
the killing of migratory birds would be available in "extraordi-
nary conditions" when the birds have "become seriously
injurious to the agricultural or other interests in any particu-
lar community," International Convention, art. VII, 39 Stat.
1704.
As s 703 is written, what matters is whether someone has
killed or is attempting to kill or capture or take a protected
bird, without a permit and outside of any designated hunting
season. Nothing in s 703 turns on the identity of the perpe-
trator. There is no exemption in s 703 for farmers, or golf
course superintendents, or ornithologists, or airport officials,
or state officers, or federal agencies. In that respect, s 703
is rather like the statute in United States v. Arizona, 295 U.S.
__________
3 "Subject to the provisions and in order to carry out the
purposes of the conventions ... the Secretary of the Interior is
authorized and directed, from time to time ... to determine when,
to what extent, if at all, and by what means, it is compatible with
the terms of the conventions to allow hunting, taking, capture, [or]
killing ... of any such bird ... and to adopt suitable regulations
permitting and governing the same...."
174, 183-84 (1935), which also framed its prohibition in terms
of the forbidden acts without mentioning the identity of the
transgressor: there shall be no "construction of any bridge,
dam, dike or causeway over or in any port, roadstead, haven,
harbor, canal, navigable river or other navigable water of the
United States until the consent of Congress shall have been
obtained and until the plans shall have been submitted to and
approved by the Chief of Engineers and by the Secretary of
War." Id. at 184 (citing 33 U.S.C. s 401). The Court viewed
the provision as restricting not only private parties, but also
state and federal agencies, so that the Secretary of the
Interior could not order the building of a dam without con-
gressional authorization. "The plaintiff maintains that the
restrictions so imposed apply only to work undertaken by
private parties. But no such intention is expressed, and we
are of opinion that none is implied. The measures adopted
for the enforcement of the prescribed rule are in general
terms and purport to be applicable to all. No valid reason
has been or can be suggested why they should apply to
private persons and not to federal and state officers." Id. at
184.
The defendants here, in order to promote their position
that federal agencies are exempt from s 703, seek to intro-
duce structural ambiguity into the Act, citing the criminal
penalty provision of s 707(a):
Except as otherwise provided in this section, any per-
son, association, partnership, or corporation who shall
violate any provisions of said conventions or of this
subchapter, or who shall violate or fail to comply with
any regulation made pursuant to this subchapter shall be
deemed guilty of a misdemeanor and upon conviction
thereof shall be fined not more than $15,000 or be
imprisoned not more than six months, or both.
16 U.S.C. s 707(a). Federal agencies, they say, cannot be
considered "persons" who may be held criminally liable for
violating the Act or the Treaty. (They do not discuss wheth-
er federal officers carrying out the extermination of migrato-
ry birds could be considered "persons.") The defendants'
reading of s 707(a) gains support from the canon that the
term "person" does not ordinarily include the sovereign. See
United States v. Cooper Corp., 312 U.S. 600, 604 (1941).4 And
so we are willing to assume that the criminal enforcement
provision could not be used against federal agencies. From
this the defendants reason that Congress could not have
intended to have s 703 restrict federal agencies because there
would have been no means to enforce the restrictions; at the
time of its enactment, they tell us, there was no provision in
the Migratory Bird Treaty Act for injunctive relief.5
The argument goes nowhere. Even without a specific
review provision, there still could have been a suit against the
appropriate federal officer for injunctive relief to enforce
s 703. Missouri v. Holland, for instance, was a "bill in
equity brought by the State of Missouri to prevent a game
warden of the United States from attempting to enforce the
Migratory Bird Treaty Act." 252 U.S. at 430. The Supreme
Court had already recognized the "equity injunction as a
method for review of administrative action" in Noble v. Union
River Logging Co., 147 U.S. 165 (1893), affirming an injunc-
tion against the Secretary of the Interior although the under-
lying statute contained no provision for judicial review. 4
Kenneth Culp Davis, Administrative Law Treatise s 23:6, at
149 (2d ed. 1983). By 1903 the Court had determined that
the "acts of all of [an agency's officers] must be justified by
some law, and in case an official violates the law to the injury
of an individual the courts generally have jurisdiction to grant
relief." American School of Magnetic Healing v. McAnnul-
ty, 187 U.S. 94, 108 (1902); see also U.S. Dep't of Justice,
Attorney General's Manual on the Administrative Procedure
__________
4 The canon applies not only to the federal government but also
to the States. See Vermont Agency of Natural Resources v. United
States ex rel. Stevens, 120 S. Ct. 1858 (2000). Yet defendants
maintain that States and state agencies are subject to the Act's
restrictions.
5 Today, the Administrative Procedure Act, 5 U.S.C. s 702,
authorizes suits in federal courts naming the United States as a
defendant and specifying in any injunctive decree the federal offi-
cers "personally responsible" for compliance.
Act 97 (1947); Richard H. Fallon et al., Hart and Wech-
sler's The Federal Courts and The Federal System 1015-17
(4th ed. 1996). Defendants are, in short, quite mistaken in
supposing that s 703 could not be enforced against federal
agencies except through the criminal provision contained in
s 707(a).
Defendants' argument, and our assumption, that federal
agencies are not "persons" within s 707(a)'s meaning there-
fore does not lead to the conclusion that Congress meant to
exempt federal agencies from s 703. Indeed it would be odd
if they were exempt. The Migratory Bird Treaty Act imple-
ments the Treaty of 1916. Treaties are undertakings be-
tween nations; the terms of a treaty bind the contracting
powers. After ratification of the Treaty, President Woodrow
Wilson affixed his signature to it and made it public, "to the
end that the same and every article and clause thereof may
be observed and fulfilled with good faith by the United States
and the citizens thereof." 39 Stat. 1705 (italics added). If one
year later, in 1917, Canadian authorities had started slaugh-
tering eider ducks, no one would doubt that Canada would be
guilty of violating Article IV of the Treaty, which protects
these ducks. If some agency of the federal government did
the same in Alaska, the United States too would be in
violation of the Treaty. There is no reason to treat the Act
differently from the Treaty since the legislation was meant to
"give effect to the convention between the United States and
Great Britain for the protection of migratory birds," ch. 128,
40 Stat. 755, 755 (1918). The Act incorporates the terms of
the Treaty in determining, among other things, two critical
issues: which birds are covered, see 16 U.S.C. s 703, and
under what conditions the Interior Department may issue
exemptions, see id. s 704. See also id. ss 708, 709a, 712 (all
referencing the conventions). In short, the fact that the Act
enforced a treaty between our country and Canada reinforces
our conclusion that the broad language of s 703 applies to
actions of the federal government.
Canada too understood that legislation implementing the
Treaty applied to the sovereign. If Canadian authorities kill
migratory birds without a permit they violate not only the
Treaty, but also Canada's Migratory Birds Convention Act.
That Act "is binding on Her Majesty in right of Canada or a
province."6 R.S.C., ch. 22, s 3 (1994). The Canadian Act,
like its American counterpart, derives from Article VIII of
the Treaty, which obligated both Contracting Powers to "pro-
pose to their respective appropriate law-making bodies the
necessary measures for insuring the execution of the present
Convention." International Convention, art. VIII, 39 Stat.
1704. That Canada treated this joint obligation to mean that
implementing legislation would be binding on the sovereign
indicates still further that s 703 restricts the actions of
federal agencies in this country.
This too had been the longstanding conclusion of the De-
partment of the Interior, which until 1997 had "historically
interpreted the provisions of the MBTA as applying to actions
of FWS employees themselves." Letter from Frank K. Rich-
ardson, Solicitor, U.S. Dep't of the Interior, to the Secretary
of the Interior at 3 (May 31, 1985); see also 50 C.F.R.
s 21.12. Although FWS has now changed its mind, neither
Interior nor Agriculture asks us to defer to their interpreta-
tion of the Act, and for good reason. The Agriculture De-
partment does not administer the Act and so its view of
s 703's meaning is entitled to no special respect. For its
part, the Interior Department conceded that the 1997 FWS
change of heart, in a letter to regional offices, was not "a
policy call on the part of the Service," nor "a 'filling in' of the
'gaps' in the" statute. Federal Defendants' Opposition to
Plaintiff's Emergency Motion to Compel Defendants to File
an Administrative Record at 2 (June 4, 1999). Christensen v.
Harris County, 120 S. Ct. 1655, 1657 (2000), holds that:
__________
6 See also R.S.C., ch. 22, s 6:
Exemptions for law enforcement activities
(5) For the purpose of investigations and other law enforce-
ment activities under this Act, the Minister may, on any terms
and conditions the Minister considers necessary, exempt game
officers who are carrying out duties or functions under this Act,
and persons acting under their direction and control, from the
application of any provisions of this Act or the regulations.
"Interpretations such as those in opinion letters--like inter-
pretations contained in policy statements, agency manuals,
and enforcement guidelines, all of which lack the force of
law--do not warrant Chevron-style deference." See also
EEOC v. Arabian Oil Co., 499 U.S. 244, 257 (1991).
For many of the reasons we have mentioned, we disagree
with the "tentative conclusion" in Newton County Wildlife
Ass'n v. United States Forest Service, 113 F.3d 110, 115 (8th
Cir. 1997), and the holding in Sierra Club v. Martin, 110 F.3d
1551, 1555 (11th Cir. 1997), that s 703 does not apply to
federal agencies. Both opinions rest on the mistaken idea
that in 1918, s 703 could be enforced only through the
criminal penalty provision in s 707(a). The Martin opinion
adds the thought that Congress could not have wanted the
Act to apply to the Forest Service in the early 1900s because
whenever it cut trees it might be destroying migratory birds
or their nests, in violation of the Act. See 110 F.3d at 1555.
The Martin court's assumption that timber harvesting could
violate the Migratory Bird Treaty Act is not shared by
others. The Eighth Circuit in Newton County, following the
lead of the Ninth Circuit in Seattle Audubon Society v.
Evans, 952 F.2d 297, 302 (1991), held that s 703 does not
prohibit "conduct, such as timber harvesting, that indirectly
results in the death of migratory birds." 113 F.3d at 114.
Even if the Martin court were correct about timber harvest-
ing, its observation about the Forest Service ignores the facts
that it was not until 1997 that the Interior Department
asserted immunity for federal agencies; that before then the
Fish and Wildlife Service interpreted the Act to apply to all
federal agencies; that during the pre-1997 period the Forest
Service, like other federal agencies, could obtain permits; and
that--as the documents submitted in this case show--it was
the Martin case and other pending litigation that "spurred"
Interior to adopt the "new" interpretation.7
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7 Nor did the Martin court acknowledge the Supreme Court's
dictum in Robertson v. Seattle Audubon Society, 503 U.S. 429
(1992), that the Act applies to federal agencies.
We conclude that because the Wildlife Services division of
the Department of Agriculture did not obtain a permit from
the Department of the Interior, its implementation of the
Integrated Goose Management Plan by taking and killing
Canada Geese violates s 703 of the Migratory Bird Treaty
Act.
Affirmed.