USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2387
THE AMERICAN BALD EAGLE, ET AL.,
Plaintiffs, Appellants,
v.
ILYAS BHATTI, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and DiClerico, Jr.,* District Judge.
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Florence Mansbach, with whom Steven M. Wise and Fraser &
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Wise, P.C., were on brief for appellants.
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Mary C. Connaughton, Assistant Attorney General, with whom
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Scott Harshbarger, Attorney General, and Rebbeca Webb, Assistant
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Attorney General, were on brief for appellees.
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November 16, 1993
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* Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. The issue to be decided by
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this appeal is whether the hunting of deer on a Massachusetts
reservation significantly affects bald eagles so as to constitute
a prohibited "taking" of that endangered species1 as defined by
the Endangered Species Act ("ESA").2 16 U.S.C. 1532(19) &
1538(a)(1)(B). How we get from a deer hunt to an allegation
regarding the taking of bald eagles requires considerable
explanation.
I. BACKGROUND
I. BACKGROUND
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The Massachusetts Division of Fisheries and Wildlife
("DFW") operates a restoration project for bald eagles on Quabbin
Reservation in Eastern Massachusetts ("Quabbin"). This
reservation covers an area of approximately 125 square miles and
contains a 25,000 acre reservoir. According to the DFW the bald
eagle population has ranged from a low of 13 in 1982 to an all
time high of 45 in 1992. In that year, the statewide population
of bald eagles was estimated at 60.
In 1986, the Metropolitan District Commission ("MDC")
began to investigate the impact of deer feeding habits on the
forest at Quabbin. Among other findings, the study determined
that the deer population at Quabbin far exceeded the statewide
average of 6-8 deer per square mile. It was concluded that this
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1 The bald eagle is listed as an endangered species. 50 C.F.R.
17.11 (1992).
2 The defendant-appellees in this case are Ilyas Bhatti in his
capacity as Commissioner of the Metropolitan District Commission
and Wayne McCallum in his capacity as Director of the
Massachusetts Division of Fisheries and Wildlife.
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was the result of a then existing deer hunting prohibition and
the decline of natural predators in the Reservation. It was also
found that deer consumption of tree seedlings was gradually
eliminating the root system necessary for the soil to act as a
filter for pollutants. This in turn posed a threat to the
quality of water at the Reservoir. After considering a variety
of alternatives, the MDC concluded that the only effective means
of addressing the underlying problem was to allow controlled deer
hunting in the reservation.
Legislation was subsequently enacted by the State to
permit a limited deer hunt at Quabbin under the MDC's authority.
Mass. Regs. Code tit. 350, 8.02 (1991). Thereafter, the MDC,
aided by DFW recommendations, developed a deer management plan
that attempted to ensure that the eagles would not be disturbed
by the deer hunt.
In the fall of 1991, appellants brought this action to
enjoin the limited deer hunt on the ground that it posed a
significant risk to the bald eagles at Quabbin in violation of
the ESA. 16 U.S.C. 1538(a)(19) & 1532(19) (1985). The
nucleus of their allegation was as follows: some of the deer
shot by hunters during the Quabbin hunt would not be recovered
but would die thereafter within the feeding area of the Quabbin
bald eagles; these deer, termed "cripple-loss deer," would
contain lead in their bodies from the lead slugs used by the
hunters as ammunition; and bald eagles would feed on these
unrecovered deer carcasses, consume a portion of the lead in the
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deer, and be harmed by the lead.
The district court denied the preliminary injunction
ruling that appellants failed to show a reasonable likelihood of
success on the merits. The hunt proceeded as planned.
Appellants then requested a permanent injunction which the court
also denied because it concluded that the hunt did not pose a
significant risk of harm to the bald eagles. This appeal
followed.
II. LEGAL STANDARD
II. LEGAL STANDARD
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Appellants make two legal challenges to the district
court's decision. Appellants first contend that the district
court applied the wrong legal standard in holding that they
failed to prove that the proposed Quabbin Reservation deer hunt
posed a significant risk of harm to its bald eagles. Appellants
next argue that the district court erred as a matter of law by
failing to define "significant risk." This failure, they argue,
under Federal Rule of Civil Procedure 52(a), violated the
requirement that the court find the facts specially and state
separately its conclusions of law thereon. We review these legal
challenges de novo. In re: Extradition of Howard, 996 F.2d 1320,
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1327 (1st Cir. 1993); Societ des produits Nestl v. Casa
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Helvetia, Inc., 982 F.2d 633, 642 n.9 (1st Cir. 1992).
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The ESA prohibits the "taking" of an endangered
species. 16 U.S.C. 1538(a)(1)(B). The ESA defines "take" as
follows: "To harass, harm, pursue, shoot, wound, kill, trap,
capture, or to attempt to engage in any such conduct." 16 U.S.C.
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1532(19). Appellants ask that we establish a numerical
standard for determining which actions constitute a "taking" of
an endangered species. They would have us establish that a one
in a million risk of harm is sufficient to trigger the
protections of the ESA. We reject this invitation as we find
nothing in the ESA, its regulations or legislative history that
supports such an arbitrary figure.
Rather than convince us to adopt a restrictive
numerical standard for harm under the ESA, appellants' analogies
to other regulatory regimes demonstrate that the exact numerical
standard for permissible harm or risk of harm varies according to
the context. For example, while a risk of one in a hundred
thousand has been thought to be appropriate in the context of
regulating benzene emissions from coke by-product plants, see
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National Emission Standard for Hazardous Air Pollutants, 49 Fed.
Reg. 23,521, 23,527 (1984), a definition of one in a million has
been considered more appropriate in other circumstances, such as
in the analysis of carcinogenicity data, see 45 Fed. Reg. 36,942
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(Environmental Protection Agency: Proposed Guidelines for
Carcinogen Risk Assessment); see also Public Citizen v. Young,
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831 F.2d 1108, 1112-13 n.4 (D.C. Cir. 1987), cert. denied, 485
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U.S. 1006 (1988). In the examples cited by appellants,
regulatory agencies, like the EPA, adopted numerical risk
standards only after consideration of extensive scientific data,
publication of proposed standards for public comment, and
extensive public hearings. Here, none of these procedures have
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occurred and appellants provide no other convincing basis for
blindly applying a numerical standard developed in another
context to the definition of "taking" under the ESA.
Furthermore, the cases cited by appellants arise in the context
of regulations involving the use of substances that have been
scientifically proven to be harmful to humans. See, e.g., Public
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Citizen, 831 F.2d 1108 (carcinogens in food additives);
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International Union, UAW v. Pendergrass, 878 F.2d 389 (D.C. Cir.
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1989) (OSHA regulation of formaldehyde). In contrast, appellants
have presented no studies that have shown that the use of lead
slugs in deer hunts has been scientifically proven to cause harm
to bald eagles.3
The proper standard for establishing a taking under the
ESA, far from being a numerical probability of harm, has been
unequivocally defined as a showing of "actual harm." The
Secretary of Interior has defined "harm," as it appears in the
ESA statute, setting out what constitutes a prohibited taking,
see discussion supra p. 4, as:
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an act which actually kills or injures
wildlife. Such an act may include
significant habitat modification or
degradation where it actually kills or
injures wildlife by significantly
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3 Appellants did present a study showing that the ingestion of
No. 4 lead shot caused harm to bald eagles. In that study,
eagles were fed ten pellets of lead shot a day for a period of
ten to fifteen days. In the present case, however, appellants
have not shown that eagles have eaten or will eat any lead slugs
(a considerably larger caliber than No. 4 shot) as a consequence
of the deer hunts. Furthermore, one of the limitations of the
Quabbin deer hunt was that hunters could use only lead slugs, no
bullets and no shot.
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impairing essential behavioral patterns,
including breeding, feeding or
sheltering.
50 C.F.R. 17.3 (1992). In formulating this definition, the
Secretary has explained that:
Congress made its intent to protect
species very clear. . . . in the
preamble to the original definition of
harm: "Harm" covers actions . . . which
actually (as opposed to potentially),
cause injury . . . .
The purpose of the rulemaking was to make
it clear that an actual injury to a
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listed species must be found for there to
be a taking under Section 9.
46 Fed. Reg. 54,748, 54,749 (1981).
Clearly, then, for there to be "harm" under the ESA,
there must be actual injury to the listed species. Accordingly,
courts have granted injunctive relief only where petitioners have
shown that the alleged activity has actually harmed the species
or if continued will actually, as opposed to potentially, cause
harm to the species. See Defenders of Wildlife v.
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Administrators, 882 F.2d 1294 (8th Cir. 1988) (enjoining the EPA
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from continuing its registration of strychnine after finding that
continued registration of the substance resulted in poisonings of
protected species); Sierra Club v. Yeutter, 926 F.2d 429 (5th
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Cir. 1991) (enjoining the United States Forest Service from even-
aged lumbering following documentation by scientists of a
dramatic decline in active Red Cockaded Woodpecker colonies and
findings by the court tracing the decline directly to Service's
lumbering practices). See also National Wildlife Fed'n v.
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National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987) (no "taking"
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where a plan was designed to reduce conflicts between man and the
grizzly bear and in the first season of operation under the plan,
there were no bear mortalities).
In this case, appellants have not shown that the hunt
caused actual harm. Our review of the record indicates that bald
eagles can be harmed by the ingestion of lead. There is,
however, no evidence in the record of any harm to the bald eagles
at Quabbin as a result of the 1991 deer hunt. See Pauite Tribe
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v. U.S. Dept. of the Navy, 898 F.2d 1410, 1420 (9th Cir. 1990)
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(activity must cause the harm). There is no evidence that any
eagles at Quabbin actually ingested lead slug or that any eagles
ate deer carrion containing lead slug. After hearing all of the
evidence, and considering among other factors the likelihood of
the presence of lead in cripple-loss deer, the likelihood of
ingestion of lead by eagles feeding on the deer, and the
likelihood that if an eagle ingests lead, it will be harmed
thereby, the district judge was not persuaded that the bald
eagles would be harmed by the proposed hunt. We find that the
record fully supports the conclusion of the trial judge.4
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4 We note that the ESA definition of "take," includes the term
"harass." 50 U.S.C. 1532(19). The regulations of the United
States Fish and Wildlife Service define "harass" as:
an intentional or negligent act which
creates the likelihood of injury to
wildlife by annoying it to such an extent
as to significantly disrupt normal
behavioral patterns which include but are
not limited to, breeding, feeding, or
sheltering.
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Appellants' challenge of the district court's decision
for allegedly failing to give specific findings under Federal
Rule of Civil Procedure 52(a) is also without merit. The
district court clearly stated the relevant statutory and
regulatory provisions. To the extent that the district court's
decision rested upon an interpretation of these provisions that
varies from that which we have established, the court employed a
more liberal interpretation of the statutory requirements.5
Moreover, the court made clear factual findings. As such,
appellants' Rule 52(a) challenge fails. We do not find it
necessary for the court to numerically define the standard it
applies in order to comply with this rule. Furthermore, we find
that the record adequately supports a finding that the proposed
deer hunt does not constitute a "taking" within the meaning of
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50 C.F.R. 17.3 (1992).
Because appellants have not shown that bald eagles have
ingested lead slugs nor fragments thereof during past hunts or
will ingest lead slugs or fragments thereof during future hunts,
we have no reason to consider whether the ingestion of lead slugs
or fragments thereof would lead to a disturbance of the eagles'
behavior pattern to the extent that it would amount to
"harassment" of the bald eagles.
5 The district court correctly stated that the issue to be
decided was "whether the hunt will cause harm or whether it will
harass, or cause the [b]ald [e]agle to be harassed." The parties
agreed that the plaintiffs had the burden of proof and that in
order to prevail they must show that "the deer hunt poses a
significant risk of harm to the [b]ald [e]agle." By requiring
the plaintiffs to show only "a significant risk of harm" instead
of "actual harm," the district court required a lower degree of
certainty of harm than we interpret the ESA to require. The
appellants certainly cannot meet this court's standard of "actual
harm" if the district court found that they failed to prove that
even a "significant risk of harm" existed.
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the ESA.6
III. CREDIBILITY OF WITNESSES
III. CREDIBILITY OF WITNESSES
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Appellants claim that the district court clearly erred
by discounting the testimony of appellants' experts and finding
more credible the testimony of appellees' experts regarding the
effect of the deer hunt on bald eagles at Quabbin.
We review the district court's credibility findings for
clear error. Brennan v. Carvel Corp., 929 F.2d 801, 806 (1st
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Cir. 1991) (in non-jury trials, findings of fact based on oral or
documentary evidence should only be set aside for clear error).
See also Anderson v. Bessemer City, 564 U.S. 575 (1984) (where
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there are two permissible views of the evidence, the factfinder's
choice between them cannot be clearly erroneous). On the record
presented, the district court did not err. Thus, we affirm the
findings of the district court.
IV. EXCLUSION OF APPELLANTS' EXHIBITS FROM EVIDENCE
IV. EXCLUSION OF APPELLANTS' EXHIBITS FROM EVIDENCE
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Appellants posit that the lower court erroneously
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6 We are aware of the decision of National Wildlife Federation
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v. Hodel, 23 Env't Rep. Cas. (BNA) 1089 (E.D. Cal. Aug. 26, 1985)
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in which a court enjoined hunting of migratory birds with lead
shot, finding a "taking" of the bald eagle. We believe that the
present case is easily distinguishable. In National Wildlife,
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the defendant had published a proposed rule stating that "there
is a substantial likelihood that lead shot used by waterfowl
hunters poses a threat to bald eagles" and significant evidence
indicated that most lead shot that poisons bald eagles is
consumed by the eagles when they feed upon other migratory birds
that are themselves either ill due to consumption of lead shot,
or have been wounded or killed by lead shot but not retrieved by
hunters. In the present case, the defendant made no such
admission and the evidence did not indicate that eagles were
poisoned by feeding on deer carcasses. Id. at 1090.
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Furthermore, the present case concerns the use of lead "slugs"
rather than lead "shot."
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excluded appellants' exhibits 11, 11A, 11B, 11C, 12 and 13 from
evidence. We disagree. Appellants offered as exhibits
highlighted portions of documents which the court found to
contain only portions of sentences taken out of context. These
exhibits were offered by appellants as either self-authenticating
documents or admissions. Appellees objected to their admission
on the grounds of completeness and that the statements were taken
out of context and stated during trial "we only prefer . . . that
the entire document be admitted in evidence, as opposed to
highlighted portions."
Pursuant to Federal Rule of Evidence 106, "[w]hen a
writing . . . or part thereof is introduced by a party, an
adverse party may require the introduction . . . of any other
part . . . which ought in fairness be considered
contemporaneously with it." Appellants argue in their briefs
that "as the defendants did not even dispute the admissibility of
the entire documents, the Court was bound to accept the portions
offered by the plaintiffs and allow the defendants to offer any
additional portions . . . ." The record shows that it was not
appellees, but appellants who vehemently opposed admitting into
evidence the entire document which would put the phrases
contained in their offered exhibits into context. In essence,
before making a final ruling on the admissibility of these
statements, the lower court let appellants choose whether the
entire documents or no portions thereof would be admitted. The
court did not abuse its discretion in refusing to admit only
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misleading portions of documents taken out of context.7
Affirmed.
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7 We have no occasion to review the lower court's finding that
the exhibits appellants sought to admit into evidence contained
portions of sentences taken out of context. Appellants do not
argue that they were in context and on appeal, they have supplied
us with entire pages taken from those documents from which it is
impossible to ascertain which portions they wished admitted.
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