## Facts

- Resident populations of Canada geese increased substantially in Virginia and the mid-Atlantic, causing property damage, contamination concerns, and public-safety and nuisance problems.
- USDA’s Animal Damage Control program developed a Virginia goose-management plan that included lethal control measures.
- The Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703, generally prohibits taking or killing protected migratory birds unless authorized by regulation or permit.
- USDA’s environmental assessment for the plan concluded that lethal control would require a permit from the Department of the Interior.
- In 1997, the Fish and Wildlife Service issued an internal memorandum stating federal agencies did not need MBTA permits because the Act did not apply to federal agencies.
- Relying on that memorandum, USDA intended to proceed with lethal control without obtaining an MBTA permit.

## Issues

1. Whether MBTA § 703’s prohibition on taking or killing migratory birds applies to federal agencies, requiring them to obtain Interior authorization before lethal control.

## Decision

- The D.C. Circuit affirmed the injunction barring implementation of the goose-management plan without an MBTA permit.
- The court held that MBTA § 703 applies to federal agencies and requires compliance with the Act’s permitting and regulatory scheme.
- The court declined to accept the government’s position that the statute’s coverage is limited to non-federal “persons” because § 707 provides criminal penalties using similar terms.
- The court gave little weight to the 1997 agency memorandum because it conflicted with statutory purpose, structure, and prior administrative practice.
- The court declined to follow contrary circuit authority that treated the criminal-penalty provision as controlling the scope of § 703’s substantive prohibition.

## Legal Principles

- MBTA § 703 imposes a substantive constraint on the taking or killing of protected migratory birds that binds federal agencies unless Congress clearly provides otherwise.
- The scope of a statute’s substantive prohibition is not necessarily limited by the reach of its criminal-penalty provision; agency compliance may be enforced through declaratory and injunctive relief even if criminal sanctions do not apply to the United States.
- Treaty-implementing statutes aimed at national conservation obligations are interpreted to avoid creating exemptions that would allow the federal government to evade the protection regime it is charged with carrying out.
- Courts may withhold deference from agency interpretations—especially late reversals—that narrow protective statutes and conflict with statutory purpose, structure, and longstanding practice.

## Conclusion

The D.C. Circuit held that federal agencies must comply with MBTA § 703 and may not implement lethal migratory-bird control measures without Interior authorization, sustaining an injunction that required USDA to obtain an MBTA permit before proceeding with the goose-management plan.


Humane Soc'y of the U.S. v. Glickman, 217 F.3d 882 (D.C. Cir. 2000)