ELR Citation: ELR 20173
No(s). 92-2387 (1st Cir. Nov 16, 1993)

The court holds that limited deer hunting authorized by the Massachusetts Division of Fisheries and Wildlife on Quabbin Reservation in eastern Massachusetts does not constitute a prohibited "taking" of bald eagles in violation of the Endangered Species Act (ESA). The court first holds that the ESA does not require it to establish a numerical standard of risk of one-in-a-million to determine which actions constitute a prohibited taking of an endangered species under ESA §9. Procedures performed by agencies in other contexts for adopting numerical standards have not been performed here, and there is no convincing basis for applying a numerical standard developed in another context to the definition of taking. The proper standard for establishing a taking, as defined by the Secretary of the Interior, is a showing of actual harm, rather than a numerical probability of harm. The court next holds that appellants failed to show any actual harm to the bald eagles from ingesting lead pellets in the carcasses of deer that were shot but not recovered by hunters, or that any eagles actually ingested lead shot or deer carrion containing lead shot. Although the record shows that eagles can be harmed by ingesting lead, the record fully supports the district judge's conclusion that the bald eagles would not be harmed. The court next holds that the district court satisfied Federal Rules of Civil Procedure 52(a)'s requirement that the court give specific findings. The district court clearly stated the relevant statutory and regulatory provisions and made clear, factual findings. Finally, the court holds that the district court's finding that appellee's experts were more credible than appellant's experts was not clear error, and that the district court did not abuse its discretion in refusing to admit into evidence highlighted portions of documents that the court found to contain only portions of sentences taken out of context.

Counsel for Plaintiffs
Steven M. Wise, Florence Mansbach
Fraser & Wise
896 Beacon St., Boston MA 02215
(617) 267-4455

Counsel for Defendants
Mary C. Connaughton, Ass't Attorney General
Attorney General's Office
One Ashburton Pl., Boston MA 02108
(617) 727-2200

Before Stahl and DiClerico^*