ELR Citation: ELR 20891
No(s). S-85-0837 EJG (E.D. Cal. Aug 26, 1985)

The court holds that the Fish and Wildlife Service has violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) by allowing the hunting of migratory birds with lead shot in areas in five states. The court first holds that the defendants have violated NEPA in not preparing a supplemental EIS to those prepared in 1975 and 1976. Defendants have acquired significant new information regarding the likely effects of lead shot on raptors during the last ten years and have found that bald eagles, an endangered species, are being poisoned by lead ingested when they feed on waterfowl. The court then holds the defendants have violated the ESA in not clearly identifying the factors that the agency considered relevant in its decision to authorize the use of lead shot and in not articulating a rational connection between those factors and the choice actually made. The court also holds that allowing the hunting season constitutes a "taking" under the ESA and that that defendants have not specified any measures to minimize the impact of their action on the taking of bald eagles during the 1985-1986 hunting season, in violation of §7(b)(4) of the ESA. Finally, the court concludes there are no "unusual circumstances" present in this case to prevent it from issuing an injunction.

Counsel for Plaintiff
Jerry Jackson
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6827

Counsel for Defendant
Eileen Sobeck
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7371

Counsel for Intervenor-Defendants
James Bowe Jr.
Hunton & Williams
2000 Pennsylvania Ave. NW, Washington DC 20036
(202) 955-1533

Michael K. McCabe
National Rifle Association
1600 Rhode Island Ave. NW, Washington DC 20036
(202) 828-6344