The American Bald v. Bhatti

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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