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18 ELR 20141 | Environmental Law Reporter | copyright © 1988 | All rights reserved California Fish and Game Commission v. Hodel No. S-87-816-RAR (E.D. Cal. October 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 the 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's) 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 the 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's 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 11990 is without merit. [A related decision is published at 15 ELR 20891.] Counsel for Plaintiff Counsel for Defendant Donald A. Carr, Eileen Sobeck Ramirez, J.: Proposed Order On September 28, 1987, a hearing was held on the plaintiff's Motion for Preliminary Injunction, Defendants' Motion to Dismiss or in the Alternative for Partial Summary Judgment, Defendant-Intervenor's Motion to Dismiss and for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment. With the consent of all parties, the hearing was consolidated with a trial on the merits pursuant to Rule 65(a)(2), Fed. R. Civ. P. After reviewing the pleadings, moving papers, opposition papers and the evidentiary material attached thereto, and oral argument of counsel, this court makes the following findings of fact and conclusions of law. A. Findings of Fact 1. Uncontroverted proof has been presented that those who engage in waterfowl hunting deposit lead shot pellets from spent shotgun shells into wetland habitat, and these pellets, either directly or indirectly, cause lead poisoning of waterfowl and bald eagles. 2. The plaintiff admits that lead-caused waterfowl mortalities do pose a serious problem in some parts of California. They do not dispute that large numbers of birds die of lead poisoning, but do dispute the extent of the problem. 3. Between 1966 and the present, 130-150 bald eagles have been diagnosed as lead-poisoned by the United States Fish and Wildlife Service (Service). 4. Lead poisoning, caused when eagles eat prey with lead shot embedded in their flesh or which have themselves ingested lead pellets, is one of the major causes of bald eagle mortality. 5. The exact extent of lead poisoning among eagles and waterfowl is speculative. This is only to be expected, however, given the nature of the disease and the habits of the birds it affects. These birds migrate great distances. They may contract and die of lead poisoning in isolated areas, and in fact may seek such areas out when afflicted. Further, it is difficult to recover the carcasses of birds which have succumbed to lead poisoning, and to correctly identify the cause of death. 6. The bald eagle was listed under the Endangered Species Act in 1973, and is now endangered in 43 states and threatened in 5. The recognized extent of the problem of lead poisoning in bald eagles has increased substantially since that time. 7. In 1976 the Fish and Wildlife Service issued an Environmental Impact Statement on the Proposed Use of Steel Shot for Hunting Waterfowl. The Service proposed to implement a phase-out of lead shot in waterfowl hunting in certain areas starting in 1976-1978. 8. In 1978 Congress first enacted the so-called Stevens Amendment, an amendment to the Appropriations Act of the Department of the Interior which provided: No funds appropriated by this Act shall be available for the implementation or enforcement of any rule or regulation of the United States Fish and Wildlife Service, Department of the Interior, requiring the use of steel shot in connection with the hunting of waterfowl in any State of the United States unless the appropriate State regulatory authority approves such implementation and enforcement. An identical provision was in force each year between 1978 and 1987. 9. By 1984 it became evident that the efforts of the Service to encourage the voluntary conversion to steel shot was not making significant progress because of the ineffectiveness of converting only limited areas to use of steel, the "hot spot" approach, and because of lack of state consent. 10. In February 1985, the Service proposed for the first time that in addition to lead-free zones for the protection of waterfowl, thirty counties in eight states should be designated as non-toxic zones for the protection of bald eagles. Five of the eight states in which steel shot zones were proposed declined to give their consent. 11. At the same time, the Service decided to employ an alternative route to combat the lead poisoning problem in future seasons. In February of 1985 the Service filed a notice in the Federal Register of its intent in the subsequent year not to open proposed zones for eagle protection to any migratory waterfowl hunting in those states that refused to consent to implement steel shot zones. 12. In June 1985, the National Wildlife Federation (NWF) filed a lawsuit challenging the 1985 regulations, and seeking to compel the Service to impose steel shot zones for the protection of eagles in the five states that had withheld their consent to such zones. In this action NWF alleged that the Service had violated the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, and various other statutes. 13. On August 26, 1985, Judge Garcia issued a preliminary injunction which prohibited the Service from opening waterfowl hunting seasons unless the five states consented to steel shot zones. 14. In early 1986, NWF challenged the approach of the Service to solving the lead poisoning problem, claiming that the Service [18 ELR 20142] was legally required to ban the use of all lead shot for waterfowl hunting by the start of the 1987-1988 season. 15. In June 1986, the Service completed preparation of a comprehensive Supplemental Environmental Impact Statement on the Use of Lead Shot for Hunting Migratory Birds. The preferred alternative, which was subsequently adopted by the Service but which was only one of several alternatives considered, called for a total phase-out of lead shot in waterfowl hunting nationwide by the 1991 hunting season. 16. The 1986 NWF action, also before Judge Garcia, was dismissed on ripeness grounds since final regulations implementing the phase-out had not been issued. 17. The final regulations implementing the five year phase-out of lead were published in November 1986. 18. The plaintiff in this action, the California Fish and Game Commission, filed suit in June 1987, challenging these regulations as well as the regulations designating steel shot zones for the 1987-1988 season issued by the Service in February 1987. The plaintiff sought both preliminary and permanent injunctions preventing the Service from requiring that states either adopt the steel shot zones or that waterfowl hunting seasons would be closed in those areas. 19. In a letter dated June 16, 1987, to the Service, the plaintiff conditionally consented to adopt the steel shot zones for 1987-1988 designated by the Service. Any of the foregoing findings of fact deemed to be conclusions of law are hereby incorporated into section B, infra. B. Conclusions of Law 1. The Court in making its ruling considered the opinions of Judge Garcia in the previous two lawsuits, but these decisions are not binding in this case. The Court did not conduct an independent review of the record in the prior cases, but did review those portions of the record submitted as part of the pleadings and motions in the instant case. 2. The principal issue in this case is the question of the effects and mandates of the Stevens Amendment. 3. Under the Stevens Amendment, the defendants have no power to enforce or implement steel shot zones directly in states which have not given their consent to these zones. 4. Under the Endangered Species Act (ESA), the Migratory Bird Treaty Act (MBTA), and the Bald and Golden Eagle Act (BGEA), the defendants have virtually carte blanche authority to protect the species covered by those statutes. Specifically, the defendants have the authority to suspend migratory bird hunting seasons, in whole or in part, notwithstanding the Stevens Amendment, authority which they have exercised for various reasons in the past. 5. The Stevens Amendment is an appropriations act. It does not expressly or impliedly repeal the authority established under the ESA, MBTA, or BGEA. 6. The intent of Congress is not clear from the language of the Stevens Amendment. It appears that the Stevens Amendment was a compromise in response to the uproar generated in opposition to the Services' 1976 plan to expand the implementation of steel shot zones in 1976-1978 in noncooperative states. The purpose of the Stevens Amendment was to preclude the use of appropriated funds for "experimental" steel shot zones without state consent. The Stevens Amendment does not, however, express any reservation or retraction of powers delegated to the Secretary of the Interior to open or close hunting seasons under the ESA or the MBTA, or to better the status quo of bald eagles or other endangered, threatened or protected species. 7. There is no conflict between the Stevens Amendment and the ESA, MBTA or the BGEA, any more than there was a conflict between the ESA and an appropriations measure in Tennessee Valley Authority v. Hill, 437 U.S. 153 [8 ELR 20513 (1978). 8. The plaintiff is not, therefore, entitled to any relief on the basis of its Stevens Amendment claims. 9. The plaintiff is also not entitled to any relief on the basis of its Tenth Amendment claim, since this claim is not independent as conceded by plaintiff's counsel at oral argument. The Stevens Amendment is the vehicle by which any of the state's Tenth Amendment rights would be protected. 10. Plaintiff's arguments that if an injunction does not issue there will be no hunting season and there will be a significant loss of wetland habitat are based on speculation and conjecture, and cannot serve as the basis for any finding of violation of any statute or as a basis for issuing an injunction. 11. There is no evidence of studies as to what hunters in California will or will not do if steel shot zones are imposed. The best evidence available is from the Illinois study of hunter attitudes. (Attachment to Exhibit 42, NWF Reply Brief.) That study indicates that no significant dropoff in hunter levels attributable only to the conversion to steel shot can be expected. 12. The plaintiff has failed to show that there is any likelihood that there will not be a waterfowl hunting season in California. If the season does not open, this will be a self-inflicted wound which the plaintiff could itself reverse, and cannot influence the balance of hardships in this case. 13. Even if there is a decrease in hunter interest or if California does not consent to steel shot zones, the plaintiff has not shown that there will be any significant reduction in wetland habitat, or how there could be given other legal restraints on the conversion, alteration and loss of wetlands, for example the restrictions of the Clean Water Act. 14. The plaintiff has, therefore, made no demonstration that any balancing of harms entitles it to an injunction in this case. 15. At the time that the biological opinion was prepared in conjunction with the Supplemental Environmental Impact Statement, the Service did not consider endangered species other than the bald eagle, or in any detail the environmental consequences of the failure to open the season. There was, however, no reason for it to have done so. The defendants are not required by the ESA, NEPA or the MBTA to evaluate each and every minute and speculative effect of their actions, or in this case to engage in any further scientific studies. 16. The court does not have jurisdiction to review the plaintiff's claim under the Regulatory Flexibility Act. Even if it did, that claim is without merit as it is based upon undue speculation. 17. The plaintiff's claim under Executive Order 11990 is also without merit. 18. There are no disputed issues of material fact in this case. Any of the foregoing conclusions of law deemed to be findings of fact are hereby incorporated into section B, supra. IT IS SO ORDERED: The motions of plaintiffs California Fish and Game Commission and National Rifle Association for summary judgment and for permanent injunctive and declaratory relief are DENIED. The motions of the federal defendants and of National Wildlife Federation to dismiss or in the alternative for summary judgment are GRANTED. This action is DISMISSED in its entirety and the Clerk shall enter JUDGMENT for the federal defendants and National Wildlife Federation and against California Fish and Game Commission and National Rifle Association. SO ORDERED. 18 ELR 20141 | Environmental Law Reporter | copyright © 1988 | All rights reserved |