Friends of Animals v. Clay et al.

14‐4071‐cv
Friends of Animals v. Clay et al.
In the
United States Court of Appeals
For the Second Circuit
________
A UGUST TERM 2015
No. 14‐4071‐cv
F RIENDS OF A NIMALS,
Plaintiff‐Appellant,
v.
W ILLIAM C LAY , IN HIS OFFICIAL CAPACITY AS A D EPUTY
A DMINISTRATOR IN THE D EPARTMENT OF A GRICULTURE, A NIMAL AND
PLANT H EALTH INSPECTION S ERVICES, AN AGENCY OF THE U NITED
S TATES, AND U NITED S TATES FISH AND WILDLIFE S ERVICE , AN AGENCY
OF THE U NITED S TATES,
Defendants‐Appellees.
________
Appeal from the United States District Court
for the Eastern District of New York
________
A RGUED: D ECEMBER 10, 2015
D ECIDED: JANUARY 26, 2016
________
Before: C ABRANES , POOLER , and L YNCH , Circuit Judges.

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________
Plaintiff‐appellant Friends of Animals appeals an October 3,
2014 order of the United States District Court for the Eastern District
of New York (John Gleeson, Judge) granting summary judgment in
favor of defendants‐appellees William Clay, in his official capacity
as a Deputy Administrator in the Department of Agriculture, the
United States Animal and Plant Health Inspection Service, and the
United States Fish and Wildlife Service. Friends of Animals brought
this action challenging the Fish and Wildlife Service’s issuance of a
“depredation permit” to the Port Authority of New York and New
Jersey, which authorizes the emergency “take” of migratory birds
that threaten to interfere with aircraft at John F. Kennedy
International Airport. Friends of Animals argues that federal
regulations prohibit the Fish and Wildlife Service from issuing such
a permit. We disagree, and accordingly AFFIRM.
________
MICHAEL R AY HARRIS , Friends of Animals,
Centennial, CO, for Plaintiff‐Appellant.
MARGARET M. K OLBE (Varuni Nelson and Sandra
L. Levy, on the brief), Assistant United States
Attorneys, for Robert L. Capers, United States
Attorney, Eastern District of New York, Brooklyn,
NY, for Defendants‐Appellees.
________

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JOSÉ A. C ABRANES, Circuit Judge:
Plaintiff‐appellant Friends of Animals (“FOA”) appeals an
October 3, 2014 order of the United States District Court for the
Eastern District of New York (John Gleeson, Judge) granting
summary judgment in favor of defendants‐appellees William Clay
(“Clay”), in his official capacity as a Deputy Administrator in the
Department of Agriculture, the United States Animal and Plant
Health Inspection Service (“APHIS”), and the United States Fish and
Wildlife Service (“FWS”). FOA brought this action challenging
FWS’s issuance of a “depredation permit” to the Port Authority of
New York and New Jersey (the “Port Authority”). The permit
authorizes the emergency “take” of migratory birds that threaten to
interfere with aircraft at John F. Kennedy International Airport
(“JFK”). FOA argues that FWS’s own regulations unambiguously
prohibit it from issuing such a permit and that the permit should
therefore be set aside as the product of agency action that was
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). FWS argues that its
regulations unambiguously authorize the issuance of such a permit.
On our de novo review of the District Court’s grant of summary
judgment, see Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007), we
agree with FWS, and accordingly AFFIRM.

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BACKGROUND
The taking1 of migratory birds is governed by the Migratory
Bird Treaty Act (“MBTA”), 16 U.S.C. § 703 et seq., and regulations
promulgated thereunder. The MBTA, which implements a series of
treaties as federal law, see Fund for Animals v. Kempthorne, 538 F.3d
124, 126‐28 (2d Cir. 2008), prohibits the taking of any bird protected
by those treaties “[u]nless and except as permitted by regulations”
promulgated under the statute, 16 U.S.C. § 703(a). The Secretary of
the Interior is charged with “determin[ing] when . . . it is compatible
with the terms of the conventions to allow” the taking of migratory
birds and with “adopt[ing] suitable regulations” in accordance with
those determinations. Id. § 704(a). One such regulation is 50 C.F.R.
§ 21.41. Under § 21.41, FWS may issue “depredation permits” that
authorize the taking (or possession or transport) of migratory birds
that are causing injury to certain human interests. 50 C.F.R. § 21.41.2
1 To “take” a bird is “to pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect” it. 50
C.F.R. § 10.12 (2014).
2 Title 50 of the Code of Federal Regulations, Section 21.41 (“Depredation
permits”), provides:
(a) Permit requirement. Except as provided in §§ 21.42 through
21.46, a depredation permit is required before any person may
take, possess, or transport migratory birds for depredation control
purposes. No permit is required merely to scare or herd
depredating migratory birds other than endangered or threatened
species or bald or golden eagles.
(b) Application procedures. Submit application for depredation
permits to the appropriate Regional Director (Attention:

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Migratory bird permit office). You can find addresses for the
Regional Directors in 50 C.F.R. 2.2. Each application must contain
the general information and certification required in § 13.12(a) of
this subchapter, and the following additional information:
(1) A description of the area where depredations are
occurring;
(2) The nature of the crops or other interests being injured;
(3) The extent of such injury; and
(4) The particular species of migratory birds committing
the injury.
(c) Additional permit conditions. In[ ]addition to the general
conditions set forth in part 13 of this subchapter B, depredation
permits shall be subject to requires [sic], in this section:
(1) Permittees may not kill migratory birds unless
specifically authorized on the permit.
(2) Unless otherwise specifically authorized, when
permittees are authorized to kill migratory birds they may
do so only with a shotgun not larger than No. 10 gauge
fired from the shoulder, and only on or over the
threatened area or area described on the permit.
(3) Permittees may not use blinds, pits, or other means of
concealment, decoys, duck calls, or other devices to lure or
entice birds within gun range.
(4) All migratory birds killed shall be retrieved by the
permittee and turned over to a Bureau representative or
his designee for disposition to charitable or other worthy
institutions for use as food, or otherwise disposed of as
provided by law.
(5) Only persons named on the permit are authorized to
act as agents of the permittee under authority of the
permit.

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Migratory birds that congregate near airports pose a well‐
known threat to human safety. Indeed, “bird strikes” have resulted
in several near‐catastrophes at JFK and nearby LaGuardia Airport
(“LaGuardia”). See J.A. 396 (describing a 1975 collision between
herring gulls and a DC‐10, which caused the aircraft’s engine to
explode and the aircraft itself to catch fire); id. (describing a 1995
collision between two Canada geese and a Concorde jet, which
caused “major damage” to the aircraft); J.A. 405 (describing a 2009
incident in which a pilot was compelled to land a jetliner on the
Hudson River after it collided with a flock of geese).3 In order to
reduce the risks associated with such bird strikes, the Port
Authority—which operates JFK, as well as LaGuardia—has
maintained a depredation permit since 1994, renewing it each year.
The permit of which FOA complains was issued by FWS on
June 11, 2014.4 It identifies eighteen species of migratory birds that
(d) Tenure of permits. The tenure of depredation permits shall be
limited to the dates which appear on its [sic] face, but in no case
shall be longer than one year.
3 References to “J.A.” are to the joint appendix.
4 FOA initially directed its challenge at a depredation permit issued in 2013,
under the authority of which three snowy owls were killed in December of that
year. The 2013 permit was renewed in June 2014 and its terms lightly altered.
See Friends of Animals v. Clay, No. 13 Civ. 7293 (JG), 2014 WL 4966122, at *6 n.5
(E.D.N.Y. Oct. 3, 2014); J.A. 1590. Observing that the 2014 permit, though not
identical to the 2013 permit, “authorizes the essential activities challenged in the
original Complaint,” the District Court concluded that “the case [was] not moot.”
Friends of Animals, 2014 WL 4966122, at *6 n.5. The parties have not discussed
whether the mootness doctrine precludes our adjudicating the legality of the

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have, in the past, compromised public safety at JFK, and authorizes
the Port Authority to take a quota of birds of each species. See J.A.
1590.
In addition to setting out these species‐specific quotas, the
challenged permit contains an “emergency‐take” provision. This
provision empowers the Port Authority, “in emergency situations
only,” to take any migratory bird (except bald eagles, golden eagles,
or endangered or threatened species) that poses a “direct threat to
human safety”—defined as a “threat of serious bodily injury or a
risk to human life”—even if it is of a species not listed on the
permit.5 J.A. 1591 (emphasis in original). FWS “rarely includes an
emergency take provision in its migratory bird permits,” but—
mindful of the “grave risks” that arise when birds congregate near
aircraft—it makes an exception for airports. J.A. 1569–70.
superseded 2013 permit; thus, we will focus, as the District Court apparently
determined was proper, on the operative 2014 permit.
5 When the Port Authority takes a migratory bird pursuant to its emergency‐take
authority, it is obliged to file within 72 hours a report that (1) “include[s] the
species and number of birds taken, the method of take, and a complete narrative
description of the circumstances under which [it] determined an emergency
existed,” and (2) “discuss[es] species behaviors that created the hazard or risk
being addressed; location of the birds relative to the aircraft or airport
operations; duration of bird presence in the area where the emergency existed;
[and] timing and amount of practical non‐lethal measures attempted prior to the
lethal take, as well as results.” J.A. 1591.

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DISCUSSION
FOA directs its challenge at the 2014 permit’s emergency‐take
provision. According to FOA, 50 C.F.R. § 21.41 does not authorize
FWS to issue a permit that allows the emergency take of a migratory
bird irrespective of its species. Instead, FOA argues, permit
applicants like the Port Authority must “provide species[‐]specific
information” to FWS, and FWS may authorize the taking of only
those species specifically listed on the permit. Contending that
FWS’s alleged failure to abide by the requirements of § 21.41 has
resulted in the Port Authority’s unlawful taking of a number of
migratory birds, including three snowy owls killed in December
2013, FOA asks us to invalidate the operative permit as the product
of agency action that was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A).
FOA concedes that if we read § 21.41 as it urges, situations
might arise in which (1) a migratory bird, of a species not listed on
the Port Authority’s permit because its presence at JFK was
unforeseen, poses a direct threat to an aircraft, and (2) Port
Authority officials are not empowered by permit to take the bird
because its species is not listed.6 It notes that, should such a
6 FOA argued in the District Court that a separate regulation, 50 C.F.R. § 21.42,
empowers FWS to authorize such takings through a depredation order (not a
permit). But § 21.42 was removed from the Code of Federal Regulations in April
2015, and at all events it never authorized the issuance of a depredation order
based on migratory birds’ posing a threat to aircraft. See 50 C.F.R. § 21.42

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situation come to pass, it would likely be best for Port Authority
officials to take the bird notwithstanding their apparent lack of
authority to do so. FOA posits that these officials might be shielded
by an affirmative defense of necessity, and at all events the
government would probably decline to prosecute such conduct.
We conclude that § 21.41 does not place Port Authority
officials in the untenable position of having to choose between
violating federal law and deliberately ignoring serious threats to
human safety. Rather, the regulation plainly authorizes FWS to
issue depredation permits that contain non‐species‐specific
emergency‐take provisions.
FWS’s authority to issue depredation permits under § 21.41 is
limited in certain respects by subsections (c) and (d) of that
provision. Subsection (d) provides, for instance, that a permit’s
duration is limited to one year. Subsection (c) sets forth conditions
common to all permits, such as the prohibition of certain hunting
practices and mandatory steps for disposing of birds that have been
killed; it also states that depredation permits are subject to the
general conditions set forth in 50 C.F.R. Part 13. Various provisions
in Part 13, in turn, further hem in the agency’s permitting authority.
(authorizing issuance of depredation orders “[u]pon the receipt of evidence
clearly showing that migratory game birds have accumulated in such numbers in
a particular area as to cause or about to cause serious damage to agricultural,
horticultural, and fish cultural interests” (emphasis supplied)), abrogated by
Migratory Bird Permits; Removal of Regulations Concerning Certain
Depredation Orders, 80 Fed. Reg. 15689 (Mar. 25, 2015) (noting removal of the
former 50 C.F.R. § 21.42).

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See, e.g., 50 C.F.R. § 13.21(a) (“No permit may be issued prior to the
receipt of a written application therefor . . . .”); id. § 13.21(c)(1)
(providing that no permit may be issued to a person who has been
convicted of a felony under, inter alia, the MBTA, absent waiver of
disqualification by the Director of FWS). But among the express
limitations on FWS’s discretion imposed by § 21.41(c)–(d) and Part
13, we find nothing to indicate that FWS may not issue a permit that
contains an emergency‐take provision. Accordingly, unless some
other feature of the regulatory regime counsels otherwise, we must
conclude that FWS has authority to issue permits of the type
challenged here.
FOA argues that this other feature is found in 50 C.F.R.
§ 21.41(b). This provision states that an application for a
depredation permit must contain the following information: “(1) A
description of the area where depredations are occurring; (2) The
nature of the crops or other interests being injured; (3) The extent of
such injury; and (4) The particular species of migratory birds
committing the injury.” According to FOA, that regulation, when
read in connection with § 21.41(c)(1)—which provides that
“[p]ermittees may not kill migratory birds unless specifically
authorized on the permit”—makes clear that a depredation permit
may not authorize the taking of bird species not listed on the
permit’s face.7
7 FOA also argues that, in its 2013 and 2014 permit applications, the Port
Authority failed to comply with § 21.41(b)(4) by not identifying “[t]he particular
species of migratory birds committing the injury” at JFK. FOA Br. 12 (quoting 50

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We disagree. Section 21.41(b) by its terms governs the
conduct of applicants, not FWS, and specifies what information must
be included in the permit application, not the permit itself. Indeed,
the provision is styled as a direct address to applicants, to whom it
gives point‐by‐point instructions for seeking a permit. See 50 C.F.R.
§ 21.41(b) (“Submit application for depredation permits to the
appropriate Regional Director (Attention: Migratory bird permit
office). You can find addresses for the Regional Directors in 50
C.F.R. 2.2. Each application must contain the . . . following
additional information . . . .”). FOA identifies no particular reason
why we should read this subsection, contrary to its plain language,
as a limit on FWS’s authority to issue permits rather than as a means
to ensure that applicants provide FWS with information germane to
the permitting determination. See Florez v. Callahan, 156 F.3d 438,
444–45 (2d Cir. 1998) (a court must give effect to a regulation’s plain
language). Section 21.41(b) is a hopelessly slender reed on which to
rest the argument that FWS is powerless to authorize the Port
Authority to take migratory birds that threaten air safety.
C.F.R. § 21.41(b)(4)). FOA contends that snowy owls, particularly, should have
been, but were not, identified in the applications. But the record shows that
snowy owls were identified in both the 2013 and 2014 applications. See J.A. 350–
51 (document entitled “Supplemental Information—Renewal Depredation
Permit MB816581‐1,” dated January 25, 2013, listing “Snowy owl” as a “bird[ ]
involved in [aircraft] strikes”); J.A. 1551 (document entitled “Supplemental
Information—Renewal Depredation Permit MB816581‐1,” dated January 28,
2014, listing “Snowy owl” among “Species of migratory birds causing
problems”).

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Nor does the language of § 21.41(c)(1) alter this conclusion.
True, this subsection provides that permittees must “not kill
migratory birds unless specifically authorized on the permit.” 50
C.F.R. § 21.41(c)(1). But this is in no way inconsistent with the 2014
permit’s emergency‐take provision. The permit authorizes the Port
Authority, in emergency situations, to “take . . . any migratory birds
. . . when the migratory birds . . . are posing a direct threat to human
safety” (that is, a “threat of serious bodily injury or a risk to human
life”). J.A. 1591. The permit thus “specifically authorize[s],” see 50
C.F.R. § 21.41(c)(1), the “tak[ing]” of migratory birds if certain
conditions are met—and one method of “tak[ing]” a bird is
“kill[ing]” it, see ante note 1.
It might reasonably be argued that the term “take” embraces
both lethal and non‐lethal actions, see id., and is therefore by itself
insufficiently precise to satisfy § 21.41(c)(1)’s requirement that the
permit “specifically authorize[ ]” the killing of migratory birds. We
need not resolve this question. It is clear in context that, as used in
the 2014 permit’s emergency‐take provision, the term contemplates
(and thus implicitly authorizes) the use of lethal methods. See J.A.
1591 (requiring that, following an emergency taking, the Port
Authority file with FWS a report including, among other elements, a
description of the “timing and amount of practical non‐lethal
measures attempted prior to the lethal take”); id. (authorizing
several “methods of take,” including “[s]hotguns” and “lethal”
traps).

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It is therefore clear that when the Port Authority takes a
migratory bird “in [an] emergency situation[ ]” because the bird
“pos[es] a direct threat to human safety,” J.A. 1591, the taking
complies with § 21.41(c)(1)’s command that “[p]ermittees may not
kill migratory birds unless specifically authorized on the permit.” In
arguing to the contrary, FOA reads into § 21.41(c)(1) words it does
not contain, producing a new regulation that says something like,
“Permittees may not kill migratory birds unless they belong to a
species specifically listed on the permit.” But that language does not
appear in § 21.41(c)(1), and it is not our business to put it there. We
accordingly reject the argument that § 21.41 prohibits FWS from
issuing depredation permits containing non‐species‐specific
emergency‐take provisions.8
8 In its reply brief, FOA argues “that FWS did not make the findings required by
Section 704 of the MBTA before issuing the permit to the Port Authority.” FOA
Reply Br. 8. Section 704 authorizes the Secretary of the Interior, “having due
regard to the zones of temperature and to the distribution, abundance, economic
value, breeding habits, and times and lines of migratory flight of such birds, to
determine when, to what extent, if at all, and by what means, it is compatible
with the terms of the conventions to allow . . . taking . . . of any such bird . . . and
to adopt suitable regulations permitting and governing the same.” 16 U.S.C.
§ 704(a). To the extent FOA is arguing that § 704(a) limits FWS’s permitting
authority in ways not found in 50 C.F.R. § 21.41, it has waived the argument by
failing to include it in its opening brief, which relies only on § 21.41. See EDP
Med. Comput. Sys., Inc. v. United States, 480 F.3d 621, 625 n.1 (2d Cir. 2007).
Accordingly, we do not consider it here.

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CONCLUSION
In sum, we hold that FWS did not run afoul of § 21.41 in
issuing to the Port Authority the 2014 depredation permit. The
October 3, 2014 order of the District Court is accordingly
AFFIRMED.

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