## Facts

- The U.S. Fish and Wildlife Service (FWS) issued a 2003 rule, “Migratory Bird Permits; Regulations for Double-Crested Cormorant Management,” creating a Public Resource Depredation Order (PRDO) codified at 50 C.F.R. § 21.48.
- The PRDO authorizes state fish and wildlife agencies, federally recognized tribes, and certain U.S. Department of Agriculture (USDA) personnel to “take” (including kill) double-crested cormorants in 25 states, without obtaining case-by-case federal depredation permits, when the birds are committing or about to commit depredations on “public resources” such as fish, wildlife, plants, and their habitats.
- The PRDO limits take through regulatory conditions, including restrictions tied to species, covered states, authorized actors, and control methods, and it requires reporting and monitoring measures designed to track and constrain overall impacts.
- Plaintiffs were wildlife organizations and individuals who alleged aesthetic and recreational injury from the killing of cormorants they observed in the wild.
- Plaintiffs sued federal officials (including the Secretary of the Interior and the FWS Director) and USDA officials (including APHIS leadership), arguing the PRDO unlawfully allowed widespread lethal take and impermissibly shifted federal authority to non-federal actors.
- Plaintiffs challenged the PRDO under the Migratory Bird Treaty Act (MBTA), the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), and U.S. treaty obligations for migratory birds, with particular focus on the U.S.–Mexico Convention.
- FWS had prepared an Environmental Impact Statement (EIS) assessing cormorant management options and alternatives before adopting the PRDO.
- The U.S. District Court for the Southern District of New York granted summary judgment to defendants and dismissed the claims; plaintiffs appealed to the Second Circuit.

## Issues

1. Whether the PRDO violates the MBTA by authorizing take without individual, case-by-case federal permits, and by allowing states, tribes, and USDA personnel to decide when and where lethal take will occur.  
2. Whether the PRDO conflicts with migratory bird treaties, including whether the U.S.–Mexico Convention’s “close season” requirement limits year-round depredation control of double-crested cormorants.  
3. Whether FWS acted unlawfully under the APA because the PRDO was arbitrary or capricious in light of the administrative record and the agency’s stated reasons.  
4. Whether FWS complied with NEPA by taking the required “hard look” at environmental effects and reasonable alternatives in the EIS supporting the PRDO.

## Decision

- The Second Circuit affirmed the district court’s summary judgment for defendants and upheld 50 C.F.R. § 21.48.  
- The court held the PRDO was a valid exercise of authority under the MBTA and that the statute allows take “permitted by regulations,” not only by individualized permits.  
- The court held the PRDO did not violate the Mexico Convention because the treaty’s close-season requirement applies to “game birds,” and the parties agreed cormorants are not game birds.  
- The court held FWS’s decisionmaking was not arbitrary or capricious under the APA given the agency’s review of the record and explanation for the chosen management approach.  
- The court held FWS satisfied NEPA because the EIS evaluated impacts and alternatives sufficiently to inform the agency’s choice.

## Legal Principles

- Under the MBTA, the Secretary may authorize take of migratory birds through generally applicable regulations setting the “extent” and “means” of take; the statute does not require individualized permits in every instance when a regulation itself defines the conditions under which take is allowed.  
- A regulation authorizing take is more likely to be upheld when it restricts who may take, what may be taken, where and by what methods, and when it includes monitoring and reporting requirements that constrain discretion and allow federal oversight.  
- Treaty obligations are interpreted by examining treaty text, structure, and subject matter; a “close season” requirement directed at “game birds” does not automatically apply to non-game species such as double-crested cormorants.  
- APA arbitrary-and-capricious review asks whether the agency considered the relevant material and gave a reasoned explanation connecting the record to the action; courts do not replace the agency’s judgment with their own where the agency’s explanation is reasonable.  
- NEPA imposes procedural duties: an agency must take a “hard look” at environmental effects and alternatives and disclose its analysis in an EIS, but NEPA does not require the agency to select the least harmful option.

## Conclusion

In *Fund for Animals v. Kempthorne*, the Second Circuit upheld FWS’s Public Resource Depredation Order for double-crested cormorants, concluding that the MBTA permits the agency to authorize take through a regulation that sets limiting conditions rather than through individualized permits, that the Mexico Convention’s close-season provision applies to game birds and therefore did not bar year-round depredation control for cormorants, and that FWS’s rulemaking record and EIS satisfied the APA and NEPA.


Fund for Animals v. Kempthorne, 538 F.3d 124 (2d Cir. 2008)