UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HUMANE SCTY US

v.

GLICKMAN, DAN


99-5309a

D.C. Cir. 2000


*	*	*


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


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




__________

n 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-


In 1997, the Director of FWS issued a memorandum to  regional directors
stating that federal agencies no longer 




__________

n 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 


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


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. 




__________

n 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


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


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 




__________

n 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


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 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




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n 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




__________

n 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.