ELR Citation: ELR 20141
No(s). S-87-816-RAR (E.D. Cal. Oct 29, 1987)

The court rules that the Stevens Amendment to the Department of Interior (DOI) Appropriations Act, which prohibits the use of appropriated funds to require the use of steel shot for waterfowl hunting in any state without the state's consent, does not limit the power of DOI under the Endangered Species Act (ESA), the Migratory Bird Treaty Act (MBTA), or the Bald and Golden Eagle Act (BGEA) to close hunting seasons in states that refuse to adopt steel shot zones. Plaintiff state game commission challenged the Fish and Wildlife Service's (FWS') regulations that designate steel shot zones and require states either to adopt the steel shot zones or undergo mandatory closing of their waterfowl hunting seasons. The court first holds that the regulations are authorized by the ESA, the MBTA, and the BGEA. Next, the court rules that the Stevens Amendment does not repeal the authority established under those statutes. The Stevens Amendment was an appropriations act, the purpose of which was to preclude the use of appropriated funds for "experimental" steel shot zones without state consent. The amendment did not, however, retract any of the powers delegated to DOI under the species protection statutes.

The court holds that the regulations do not violate the Tenth Amendment, since the Stevens Amendment is the vehicle by which the states' Tenth Amendment rights would be protected. The court also holds that plaintiff's assertion that the lack of a hunting season will cause loss of wetlands habitat by conversion cannot serve as the basis for a finding of statutory violation or for the issuance of an injunction. Plaintiff has failed to show that hunters would not hunt if required to use steel shot, or that there is any likelihood that there will be no waterfowl hunting season in California. Plaintiff itself can prevent the closing of the waterfowl hunting season by adopting steel shot zones. Even if there were decreased hunting or no hunting season at all, plaintiff has not shown that there would be any significant reduction in wetlands habitat. The court holds that the discussion of environmental effects in the FWS' environmental impact statement for the regulations was adequate, that the court has no jurisdiction to review plaintiff's claim under the Regulatory Flexibility Act, and that plaintiff's claim under Executive Order No. 11990 is without merit.

[A related decision is published at 15 ELR 20891.]

Counsel for Plaintiff
Jerry Jackson
National Wildlife Federation
1412 16th St. NW, Washington DC 20036-2266
(202) 637-3725

Counsel for Defendant
David F. Levi, U.S. Attorney; Louis Demas, Ass't U.S. Attorney
3305 Federal Bldg., 650 Capital Mall, Sacramento CA 95814
(916) 440-2331

Donald A. Carr, Eileen Sobeck
Land and Natural Resources Division
Benjamin Franklin Station, P.O. Box 7369, Washington DC 20044-7369
(202) 724-7352