ADDITIONAL CASES National Audubon Society; American Bird Conservancy; Center for Biological Diversity; Defenders of Wildlife, Plaintiffs v. U.S. Department of the Interior; U.S. Fish and Wildlife Service; Daniel Jorjani, Defendants; 18-CV-4601 (VEC). State of New York; State of California; State of Illinois; State of Maryland; Commonwealth of Massachusetts; State of New Jersey; State of New Mexico; State of Oregon, Plaintiffs v. U.S. Department of the Interior; U.S. Fish and Wildlife Service; Daniel Jorjani, in his official capacity as Principal Deputy Solicitor exercising the authority of the Solicitor of the Interior, Defendants; 18-CV-8084 (VEC). OPINION AND ORDER Environmental interest groups and various States brought these three actions to vacate a December 2017 memorandum by Daniel Jorjani, Principal Deputy Solicitor of the United States Department of the Interior (“DOI”), that interprets the Migratory Bird Treaty Act (“MBTA”) to permit the “incidental” taking, or killing, of migratory birds. See 18-CV-4596 Dkt. 1 (Compl.); 18-CV-4601 Dkt. 1 (Compl.); 18-CV-8084 Dkt. 6 (Compl.). Defendants — Principal Deputy Solicitor Jorjani, DOI, and the United States Fish and Wildlife Service (“FWS”) — have moved to dismiss all three actions for lack of Article III standing and for failure to state claims under the Administrative Procedure Act (“APA”), 5 U.S.C. §701 et seq., among other grounds. See 18-CV-4596 Dkts. 26-28; 18-CV-4601 Dkts. 29-31; 18-CV-8084 Dkts. 44-46. The Court, meanwhile, has directed the parties to show cause why the cases should not be consolidated pursuant to Fed. R. Civ. P. 42(a)(2). See 18-CV-4596 Dkt. 51; 18-CV-4601 Dkt. 44; 18-CV-8084 Dkt. 64. For the following reasons, these cases are CONSOLIDATED, and Defendants’ motions to dismiss are GRANTED IN PART and DENIED IN PART. BACKGROUND1 Because Defendants’ motions largely concern procedural matters; because the briefs submitted by the parties and by several former DOI officials as amici curiae (see 18-CV-4596 Dkt. 44 ex. 1) so thoroughly address the topic; and because the Court will provide further details throughout this opinion, only a brief description of the MBTA and the agency activities giving rise to this litigation is necessary. In 1916, the United States and Great Britain, acting on Canada’s behalf, entered into a treaty to protect migratory birds. See Convention Between the United States and Great Britain for the Protection of Migratory Birds, Gr. Brit.-U.S., Aug. 16, 1916, 39 Stat. 1702. In 1918, the United States enacted the MBTA to implement the treaty and similar treaties with other countries.2 The MBTA generally provides that it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof. 16 U.S.C. §703(a). In its current form, the MBTA makes any violation of its provisions a misdemeanor punishable by a fine of up to $15,000 and imprisonment for up to six months. Id. §707(a). Any knowing “take” of any migratory bird “by any manner whatsoever” with intent to sell it is a felony punishable by a fine of up to $2,000 and imprisonment for up to two years. Id. §707(b). Although the statute does not define “take,” it is colloquially understood in the wildlife context to refer to an act by which a person achieves possession or control over an animal. An FWS regulation generally defines the term to mean “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 50 C.F.R. §10.12. For decades, DOI had interpreted the MBTA as making any “incidental” take of a migratory bird — that is, a take that results from a human activity when taking the bird is not the purpose of the activity — a misdemeanor. See 18-CV-8084 Dkt. 6 app. A (Tompkins Op.) at 1-2, 12-15. Indeed, in early January 2017, DOI’s Solicitor — the Department’s chief lawyer and the DOI official charged with, among other things, issuing opinions setting forth DOI’s interpretation of federal statutes — issued a memorandum that reaffirmed DOI’s “long-standing interpretation that the MBTA prohibits incidental take.” Id. at 2. That memorandum, officially known as M-37041, will be referred to in this opinion as the “Tompkins Opinion,” named for the DOI Solicitor by whom it was issued. In December 2017, following a change in administrations and Solicitor Tompkins’s departure, DOI’s Principal Deputy Solicitor, Daniel Jorjani — exercising the authority of the DOI Solicitor in the absence of a confirmed appointee to that office3 — issued a new memorandum permanently withdrawing and replacing the Tompkins Opinion. See Dkt. 28 ex. A (Jorjani Op.) at 1.4 This new memorandum, officially known as M-37050, will be referred to in this opinion as the “Jorjani Opinion.” The Jorjani Opinion reverses the Tompkins Opinion. It concludes that, “consistent with the text, history, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.” Dkt. 28 ex. A (Jorjani Op.) at 2. Acknowledging that “this interpretation is contrary” to DOI’s “prior practice,” the Opinion states that “[i]nterpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.” Id. at 1-2 & n.4. In April 11, 2018, the Principal Deputy Director of FWS — an agency within DOI — issued a memorandum and a “frequently asked questions” document to “provide[] guidance to clarify what constitutes prohibited take” under the MBTA in light of the Jorjani Opinion. See 18-CV-8084 Dkt. 6 app. B (FWS Guidance) at 1. That memorandum notes that FWS “is modifying some policies and practices within its programs” to “[e]nsure consistency with the recently issued” Jorjani Opinion and directs FWS personnel to “ensure that [the agency's] comments, recommendations, or requirements are not based on, nor imply, authority under the MBTA to regulate incidental take of migratory birds.” Id. at 1-2. It also provides that FWS “will not withhold a permit, request, or require mitigation based upon incidental take concerns under the MBTA.”5 Id. at 2. In May 2018, the NRDC and Audubon Plaintiffs filed lawsuits challenging the Jorjani Opinion; in September 2018, the States filed a similar lawsuit. See 18-CV-4596 Dkt. 1 (NRDC Compl.); 18-CV-4601 Dkt. 1 (Audubon Compl.); 18-CV-8084 Dkt. 6 (States Compl.). All of the actions assert that the Jorjani Opinion’s interpretation of the MBTA is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in violation of the APA, 5 U.S.C. §706(2)(A). See 18-CV-4596 Dkt. 1 (NRDC Compl.)
76-81; 18-CV-4601 Dkt. 1 (Audubon Compl.)
