THE FUND FOR
ANIMALS, INC., et al., Plaintiffs, v. JACK WARD THOMAS,
Civil Action No. 95-1177 (TPJ)
UNITED STATES DISTRICT COURT FOR THE
932 F. Supp. 368; 1996
DISPOSITION: [**1] Plaintiffs' motion for summary judgment
denied, defendants' motion for summary judgment granted, and case dismissed.
COUNSEL: For THE FUND FOR ANIMALS, INC., FRIENDS OF THE BOW,
BIODIVERSITY LEGAL FOUNDATION, NORTHWEST ECOSYSTEM
For JACK WARD THOMAS, Chief of the United States Forest Service, DAN
GLICKMAN, Secretary of the Department of Agriculture, BRUCE BABBITT, Secretary
of the Department of the Interior, MOLLIE BEATTIE, Director of the U.S. Fish and
Wildlife Service, federal defendants: Michael J. Robinson, U.S. DEPARTMENT OF
JUSTICE, Environment & Natural Resources Division, Washington, DC. Joseph
Robert Perella, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources
Division,
For WILDLIFE CONSERVATION FUND OF AMERICA, movant: William P. Horn, BIRCH,
HORTON, BITTNER & CHEROT,
JUDGES: Thomas Penfield Jackson, U.S. District Judge
OPINIONBY: Thomas Penfield Jackson
OPINION: [*369] MEMORANDUM AND ORDER
Plaintiffs are two individuals and six organizations [**2] of
like-minded persons who make extensive use of the national forests for hiking,
camping and similar non-predatory purposes. Defendants are the heads of the U.S.
Forest Service and the U.S. Fish and Wildlife Service ("FWS") and
their cabinet office superiors, the Secretaries of Agriculture and Interior,
respectively. The State of
The plaintiffs and their supporters regard the practice of "baiting"
for game in general, and in particular, baiting for black bears, as odious.
"Bear baiting" involves the placement of animal carcasses or offal,
called "bait stations," in the vicinity of hunters' [**3]
blinds to entice the animals into range by the scent. Plaintiffs say the bait
stations are offensive to them in many respects. They are unsanitary,
malodorous, unsightly, unsportsmanlike, and on occasion dangerous to non-hunters
in the vicinity.
Plaintiffs' long-range objective is to cause the Forest Service, if it refuses
to do so on its own, to assert complete and exclusive dominion over, and then to
abolish most if not all hunting activity on federal forest lands. They would
welcome a Forest Service regulation preempting any state law to the contrary to
prohibit all game-baiting in the wilderness areas within its jurisdiction. For
present purposes, however, they will be content with a judgment vitiating the
Forest Service's current policy which they regard as no policy at all, and the
worst of the alternatives proposed when the issue was open to public comment. n1
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n1 The policy is expressed as an amendment to the Forest Service Manual.
Game-baiting is defined as a "hunting practice" subject to state
hunting laws, i.e., permitted on federal forest lands when and as permitted
elsewhere in the state and vice versa, unless an authorized Forest Service
officer "determines on a site-specific basis that there is a need to
prohibit or restrict the practice." Although the decision to prohibit or
impose restrictions on game-baiting is committed to the discretion of the
officer on the scene, the circumstances warranting the officer's decision to do
so are specified. If state laws or regulations fail to afford protection to
forest land, resources, or other users of the land in terms of water quality,
public health and safety, or the "the viability of wildlife" and the
like; if the "effects of baiting" are in conflict with the forest
management plan; or if state laws and regulations contravene federal laws such
as the Endangered Species Act, the Forest Service officer may take appropriate
action to abate the offending activity. The policy also contemplates continuing
contact between state and federal officials to harmonize, to the extent
practicable, their respective rules governing the uses of forest lands generally
and to coordinate enforcement activities. (A.R. Doc. 165).
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While it is officially neutral on the subject of baiting in principle, the
Forest Service's policy is to leave the decision to prohibit baiting, or to
allow but regulate it as a "hunting practice" or technique, to the
individual states in which a particular national forest is situated, as it does
with most other matters relating to the management of the indigenous fauna, in
accordance with common law, tradition, and what it understands to be the will of
Congress as consistently expressed in the several statutes defining its mission.
The common law has always regarded the power to regulate the taking of animals
ferae naturae to be vested in the states to the extent "their exercise of
that [*370] power may not be incompatible with, or restrained by,
the rights conveyed to the Federal government by the Constitution." Geer v.
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n2 The Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. at § 528; the
National Forest Management Act of 1976, 16 U.S.C. at §§ 1600(3) and 1601(d)
(incorporating, inter alia, 16 U.S.C. § 528); and the Federal Land Policy and
Management Act of 1976, 43 U.S.C. at § 1732(b).
According to plaintiffs, some states have outlawed game-baiting altogether, and
all but ten prohibit baiting for bears. Only
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Plaintiffs read the Forest Service's legislative mandate differently. They
believe Congress has imposed fiduciary responsibilities on the Forest Service to
conserve not only the forests themselves, but also their "primeval
character" and "natural condition," see 16 U.S.C. § 1131(c), and
thus by implication the animal populations that inhabit them. In particular,
they contend that the Forest Service's new policy on baiting for game abdicates
those responsibilities, and that, at a minimum, before it could lawfully do so
the Forest Service had to comply with the National Environmental Policy Act, 42
U.S.C. §§ 4321 et seq. ("NEPA"), by preparing an environmental
impact statement ("EIS") anticipating the consequences of a policy
decision that plaintiffs perceive as a "major federal action significantly
affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).
Plaintiffs assert that the Forest Service also ignored its obligation under the
Endangered Species Act, 16 U.S.C. §§ 1532 et. seq., ("ESA"), a
default in which it was abetted by its co-defendant Fish and Wildlife Service,
to engage in "formal consultation" respecting the likelihood that
bear-baiting would [**7] jeopardize the continued existence of an
"endangered" species, the grizzly bear, by enabling inadvertent
"takings" of grizzlies over bait intended ostensibly to attract only
black bear. See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a).
Whether an EIS is mandatory is initially determined by doing an Environmental
Assessment ("EA"), 40 C.F.R. § 1501.4, or what is essentially a
mini-EIS. If the agency's EA concludes that what it proposes to do is of
negligible consequence to the environment, it issues a Finding of No Significant
Impact ("FONSI"), as the Forest Service did here. (A.R. Docs. 160,
161). The Forest Service maintains that its policy of laissez faire is
essentially one of inaction, i.e., a considered judgment to do nothing about
game-baiting by leaving to the several states the responsibility for regulating
the hunting of their wildlife, including baiting, unless and until a federal
interest is seen to be imperilled in individual cases by an officer on the
scene. In other words, the Forest Service's decision to revert to its
traditional reliance upon the states to regulate all hunting practices,
including game-baiting on federal forest lands in which they are situated [**8]
was not a "major federal action" at all in the sense intended by NEPA.
Its EA was as superfluous as its policy is environmentally innocuous.
Defendants' response to the charge that they disregarded their mutual duty of
consultation under the ESA is that they initially consulted
"informally," pursuant to 50 C.F.R. 402.13(a), to ascertain if formal
consultation were even needed. Both agencies agreed that it was not. Neither the
grizzly bear nor any other endangered or threatened species (e.g., bald eagle,
gray wolf) were "likely to [be] adversely affected. (A.R. Doc. 160, [*371]
Appendix B, Letter of
Plaintiffs cite such well-known leading cases as Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), and Natural
Resources Defense Council v. Herrington, 247 U.S. App. D.C. 340, 768 F.2d 1355
(D.C. Cir. 1985) stressing the importance Congress attaches to official
cognizance on the part of federal agencies of the environmental consequences of
their activities, and the comprehensive forethought expected of them to avert
harmful impacts whenever possible. Of more immediate application to the instant [**9]
case, however, are such cases as Defenders of Wildlife v. Andrus, 201 U.S. App.
D.C. 252, 627 F.2d 1238 (D.C. Cir. 1980) and State of Alaska v. Andrus, 591 F.2d
537 (9th Cir. 1979), in which two circuit courts of appeals declined to force
federal officials to prepare an EIS before allowing state-sanctioned programs
for the destruction of wildlife on federal property to go forward, relief
similar to that sought by plaintiffs here on the basis of much the same
statutory authority as plaintiffs rely upon here.
On balance the Court finds defendants to have the better of the argument.
Plaintiffs are simply exerting their efforts in the wrong forum. If Congress
intends to exercise the undoubtedly plenary power of the federal government over
hunting on federal forest lands in any respect, it has only to say so, "the
game laws or other statute of [a] state to the contrary notwithstanding."
Hunt v.
For the foregoing reasons, therefore, it is, this 8th day of August, 1996,
ORDERED, that plaintiffs' motion for summary judgment is denied; and it is
FURTHER ORDERED, that defendants' motion for summary judgment is granted, and
this case is dismissed.
Thomas Penfield Jackson
U.S. District Judge