05-2603-cv

Fund for Animals v. Kempthorne

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: November 9, 2007 Decided: August 14, 2008) 5 6 Docket No. 05-2603-cv 7

------------------------------------- 8 THE FUND FOR ANIMALS, HUMANE SOCIETY OF THE UNITED STATES, 9 DEFENDERS OF WILDLIFE, ANIMAL RIGHTS FOUNDATION OF FLORIDA, 10 DONALD FEARE, GUSTAV W. VERDERBER, JULIE BAKER, KRISTI GHOLSON, 11 COLLETTE ADKINS GIESE, MARIAN PROBST, 12 Plaintiffs-Appellants, 13 - v - 14 DIRK KEMPTHORNE, Secretary of the Interior, H. DALE HALL, Fish 15 and Wildlife Service Director, CHUCK CONNER, Acting Secretary of 16 Agriculture, and CINDY SMITH, Administrator of the 17 Animal and Plant Health Inspection Service, 18 19 Defendants-Appellees. 20

------------------------------------- 21 Before: McLAUGHLIN, CABRANES, and SACK, Circuit Judges. 22 Appeal from a judgment of the United States District 23 Court for the Southern District of New York (P. Kevin Castel, 24 Judge) granting the defendants' motion for summary judgment and 25 dismissing plaintiffs' claims challenging the defendants' Public 26 Resource Depredation Order, 50 C.F.R. § 21.48, as a violation of 27 treaty obligations and federal statutes. 28 Affirmed.2 1 KIMBERLY D. OCKENE, Meyer Glitzenstein & 2 Crystal (Howard M. Crystal, Eric R. 3 Glitzenstein, Meyer Glitzenstein & 4 Crystal, Washington, DC; and Leonard D. 5 Egert, Amy Trakinski, Egert 6 & Trakinski, New York, NY, of counsel), 7 Washington, DC, for Plaintiffs8 Appellants. 9 SARAH S. NORMAND, Assistant United 10 States Attorney (Michael J. Garcia, 11 United States Attorney for the Southern 12 District of New York, and Sara L. 13 Shudofsky, Assistant United States 14 Attorney, of counsel), New York, NY, for 15 Defendants-Appellees. 16 SACK, Circuit Judge: 17 The plaintiffs appeal from a judgment of the United 18 States District Court for the Southern District of New York (P. 19 Kevin Castel, Judge), which, among other things, dismissed on a 20 motion for summary judgment their claims challenging the Public 21 Resource Depredation Order, 50 C.F.R. § 21.48 (the "Depredation 22 Order"), on the grounds that it violates treaty obligations of 23 the United States and federal statutes. We consider on appeal 24 whether the defendants issued the Depredation Order in compliance 25 with the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 et 26 seq., the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, 27 the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 28 et seq., and international treaties relating to the treatment of 29 migratory birds to which the United States is a party. 30 BACKGROUND 31 The plaintiffs are individuals who, and organizations 32 whose members, derive pleasure from observing water birds known3 1 as double-crested cormorants ("cormorants") in their natural 2 habitat. These birds are not protected by the Endangered Species 3 Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated 4 by international treaties to which the United States is a party, 5 and by federal statutes and regulations. The Fish and Wildlife 6 Service ("FWS") has been delegated primary responsibility for 7 regulating migratory birds, including cormorants. See Migratory 8 Bird Permits; Regulations for Double-Crested Cormorant 9 Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003). 10 The plaintiffs brought this action to challenge the 11 Depredation Order, which, they allege, violates the relevant 12 treaties and statutes by "authoriz[ing] state fish and wildlife 13 agencies, Indian Tribes, and U.S. Department of Agriculture . . . 14 employees to kill an unlimited number of federally protected 15 double-crested cormorants in New York and twenty-four other 16 States, without any restrictions on time of year or location of 17 the killings, without any advance notice to the FWS, and without 18 any showing of specific, localized harm caused by the 19 cormorants." Compl. ¶ 1. 20 Because they are migratory birds, cormorants regularly 21 cross national boundaries. Prior to 1916, the treatment of these 22 birds was regulated by individual nations within their own 23 borders, making it difficult for any individual country to 24 protect their populations from over-hunting or other harm. In 25 order to create a "uniform system" for migratory birds that 26 passed through their territories, the United States in 19164 1 negotiated a treaty with the United Kingdom, acting on behalf of 2 Canada, to coordinate protection of certain bird populations. 3 See Convention Between the United States of America and the 4 United Kingdom of Great Britain and Ireland for the Protection of 5 Migratory Birds in the United States and Canada, U.S.-Gr. Brit., 6 Proclamation, Aug. 16, 1916, 39 Stat. 1702 ("U.K. Convention"). 7 Similar treaties were later entered into by the United States 8 with Mexico in 1936, Japan in 1972, and the Soviet Union in 1976. 9 See Convention between the United States of America and the 10 United Mexican States for the Protection of Migratory Birds and 11 Game Mammals, U.S.-Mex., Feb. 7, 1936, 50 Stat. 1311 ("Mexico 12 Convention"); Convention between the Government of the United 13 States of America and the Government of Japan for the Protection 14 of Migratory Birds and Birds in Danger of Extinction, and Their 15 Environment, U.S.-Japan, Mar. 4, 1972, 25 U.S.T. 3329; Convention 16 between the United States of America and the Union of Soviet 17 Socialist Republics Concerning the Conservation of Migratory 18 Birds and Their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 19 U.S.T. 4647. Each of these treaties lists the birds that are 20 protected under its terms. Only the Mexico Convention, as 21 amended in 1972, explicitly applies to cormorants. 22 The original 1936 Mexico Convention provides, in 23 pertinent part: 24 ARTICLE I. In order that the species may not 25 be exterminated, the [United States and 26 Mexico] declare that it is right and proper 27 to protect birds denominated as migratory . . 28 . by means of adequate methods which will 29 permit, in so far as the respective high5 1 contracting parties may see fit, the 2 utilization of said birds rationally for 3 purposes of sport, food, commerce and 4 industry. 5 ARTICLE II. The [United States and Mexico] 6 agree to establish laws, regulations and 7 provisions to satisfy the need set forth in 8 the preceding Article, including: 9 A) The establishment of close seasons, 10 which will prohibit in certain periods 11 of the year the taking of migratory 12 birds . . . . 13 . . . 14 C) The limitation of their hunting to 15 four months in each year, as a maximum, 16 under permits issued by the respective 17 authorities in each case.

18 D) The establishment of a close season 19 for wild ducks . . . . 20 . . . 21 ARTICLE IV. . . . [T]he following birds shall 22 be considered migratory: 23 Migratory game birds. . . . 24 Migratory non-game birds. . . . 25 Mexico Convention, arts. I, II, IV, 50 Stat. at 1312-14. The 26 1972 amendments to the Mexico Convention added the cormorant 27 family of birds, but did not specify whether it was a game or 28 non-game bird. See Agreement between the Government of the 29 United Mexican States and the Government of the United States of 30 America Amending Article 4 of the Convention for the Protection 31 of Migratory Birds and Game Mammals, Signed at Mexico City on 32 February 7, 1936, U.S.-Mex., Mar. 10, 1972, 23 U.S.T. 260 33 ("Mexico Convention 1972 Amendments"). It is undisputed for 34 present purposes that the cormorant is a non-game bird.6 1 The MBTA implements these treaties as federal law. It 2 was first enacted in 1918 to reflect the mandates of the U.K. 3 Convention, and later amended to reflect each of the subsequently 4 negotiated treaties. The statute makes it "unlawful at any time, 5 by any means or in any manner," inter alia, to "take" birds 6 listed in the relevant treaties. 16 U.S.C. § 703(a). To "take" 7 a bird means "to pursue, hunt, shoot, wound, kill, trap, capture, 8 or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, 9 capture, or collect" it. 50 C.F.R. § 10.12. 10 The MBTA also delegates authority to the United States 11 Secretary of the Interior, 12 from time to time, having due regard to the 13 zones of temperature and to the distribution, 14 abundance, economic value, breeding habits, 15 and times and lines of migratory flight of 16 such birds, to determine when, to what 17 extent, if at all, and by what means, it is 18 compatible with the terms of the conventions 19 to allow hunting, taking, capture, killing, 20 possession, sale, purchase, shipment, 21 transportation, carriage, or export of any 22 such bird, or any part, nest, or egg thereof, 23 and to adopt suitable regulations permitting 24 and governing the same, in accordance with 25 such determinations, which regulations shall 26 become effective when approved by the 27 President. 28 16 U.S.C. § 704. This authority has been subdelegated by the 29 Secretary to the FWS. See 50 C.F.R. § 10.1. 30 When migratory birds converge in large numbers, they 31 may consume large quantities of local plants, fish, or other 32 species. In doing so, they may harm commercial activity 33 dependent on those species. For example, as the cormorant 34 population has grown over the past several decades, the FWS has"[A]n act of plundering, despoiling, or making inroads." 1 Webster's Third International Dictionary Unabridged 606(2002). The FWS regulations do not define the word. 7 1 received increasing numbers of complaints from fishermen and 2 operators of aquaculture facilities, such as commercial catfish 3 farms, asserting that cormorants are responsible for plundering 4 the same fish that they seek to gather, cultivate, and sell. 5 When migratory birds cause, or are about to cause, such 6 acts of "depredation,"the FWS may, upon application, issue a 1 7 permit that allows a person to take migratory birds for 8 depredation control purposes. See 50 C.F.R. § 21.41. 9 Applications for such permits must include, inter alia, "(1) A 10 description of the area where depredations are occurring; (2) The 11 nature of the crops or other interests being injured; (3) The 12 extent of such injury; and (4) The particular species of 13 migratory birds committing the injury." Id. Permittees are 14 subject to a variety of conditions, including limitations on the 15 manner in which the birds in question may be killed and the 16 proper methods of disposing of their remains.Id. 17 As an alternative to individual permits, the FWS may, 18 "[u]pon the receipt of evidence clearly showing that migratory 19 game birds have accumulated in such numbers in a particular area 20 as to cause or about to cause serious damage to agricultural, 21 horticultural, and fish cultural interests . . . issue by 22 publication in the Federal Register a depredation order . . . ." 23 50 C.F.R. § 21.42. Such an order must state explicitly that it 24 is an "emergency measure designed to relieve depredations only"8 1 and it must impose certain restrictions on the manner in which 2 birds may be killed. Id. 3 In addition to these general provisions for addressing 4 depredations, the FWS also provides specific rules for 5 depredation orders that have been issued relating to specific 6 species. See 50 C.F.R. §§ 21.43-46. The rules referred to above 7 were all in effect prior to and at the time of the FWS's 8 promulgation of the orders at issue in this case. 9 Agency Proceedings 10 In response to complaints that cormorants' fish-eating 11 habits were becoming increasingly costly to aquaculture and other 12 industries, the FWS in 1998 adopted an Aquaculture Depredation 13 Order, 50 C.F.R. § 21.47, allowing the taking of cormorants 14 without a permit when they are found committing or about to 15 commit acts of depredation on aquaculture stocks, subject to 16 various conditions and only within thirteen enumerated states. 17 See id. This provision was amended when the FWS adopted the 18 Depredation Order at issue in this appeal. 19 In response to continued complaints of cormorant20 related depredations, and an increase in complaints unrelated to 21 aquaculture, the FWS in 1999 issued a Notice of Intent to develop 22 a "national cormorant management plan" with an accompanying 23 Environmental Impact Statement ("EIS") as required by NEPA. 24 Migratory Bird Permits; Notice of Intent To Prepare an 25 Environmental Impact Statement and National Management Plan for 26 the Double-Crested Cormorant, 64 Fed. Reg. 60,826 (Nov. 8, 1999);9 1 see also 42 U.S.C. § 4332(2)(C). The FWS also formed a 2 "Cormorant Team" consisting of staff members from various FWS 3 offices which consulted with the U.S. Department of Agriculture's 4 Animal and Plant Health Inspection Service ("APHIS"). The team 5 evaluated methods of managing the cormorant population. In 6 December 2001, it released a Draft EIS ("DEIS") for public 7 comment. Notice of Availability; Draft Environmental Impact 8 Statement on Double-Crested Cormorant Management, 66 Fed. Reg. 9 60,218 (Dec. 3, 2001). The DEIS presented "six management 10 alternatives to address biological and socioeconomic resource 11 conflicts associated with cormorants." Id. They included: 1) no 12 action (continuation of existing cormorant management practices); 13 2) only non-lethal management techniques; 3) expansion of 14 existing cormorant management policies; 4) a new depredation 15 order; 5) reduction of regional cormorant populations; and 6) 16 frameworks for a cormorant hunting season. Id. From these 17 alternatives, the team recommended the fourth, proposing in the 18 DEIS the adoption of a new depredation order "to allow public 19 resource managers greater flexibility in dealing with cormorant 20 conflicts while ensuring Federal oversight via reporting and 21 monitoring requirements." Id. 22 The proposed depredation order, as described by the 23 DEIS, "authoriz[es] State, Tribal, and Federal land management 24 agencies to implement a [cormorant] management program, while 25 maintaining Federal oversight of [cormorant] populations via 26 reporting and monitoring requirements." U.S. Fish and Wildlife10 1 Service, Draft Environmental Impact Statement: Double-Crested 2 Cormorant Management 17 (2001), available at 3 http://www.fws.gov/migratorybirds/issues/cormorant/deis/chapter2. 4 pdf (last visited July 22, 2008). These land management agencies 5 would be allowed to take cormorants without a permit "to protect 6 biological resources . . . on public lands and waters," though 7 they were to "utilize non-lethal management tools to the extent 8 they consider[ed] appropriate." Id. at 18. The agencies would 9 be required to keep records of all activities and report this 10 data to the FWS annually. Id. at 19. The FWS reserved the 11 authority "to immediately suspend or revoke any Agency's 12 authority under [the proposed depredation order]" if the agency 13 did not adhere to the terms specified in the order or if the FWS 14 determined that cormorants no longer posed a threat to public 15 resources, or if the viability of cormorant populations were 16 threatened. Id. 17 In March 2003, the FWS published a proposed rule 18 reflecting slight modifications of the proposed depredation order 19 as described in the DEIS. Migratory Bird Permits; Regulations 20 for Double-Crested Cormorant Management, 68 Fed. Reg. 12,653 21 (proposed Mar. 17, 2003) (to be codified at 50 C.F.R. pt. 21). 22 Among other changes, the proposed rule reduced the number of 23 states to which the proposed depredation order would apply from 24 forty-eight to twenty-four, identified with greater specificity 25 the agencies to which the order would apply, restricted its 26 applicability to land and freshwater (therefore excluding11 1 saltwater), and allowed more methods for taking cormorants. Id. 2 at 12,654. It also noted that "[w]hile the [FWS] has the primary 3 responsibility for regulating [cormorant] management, on-the4 ground management activities are largely carried out by entities 5 such as State fish and wildlife agencies, wildlife damage control 6 agencies such as the Wildlife Services program of [APHIS] and, in 7 some cases, by private citizens." Id. 8 The FWS published its final EIS in August 2003 and 9 issued a final rule on October 8, 2003. See Notice of 10 Availability; Final Environmental Impact Statement on 11 Double-Crested Cormorant Management, 68 Fed. Reg. 47,603 (Aug. 12 11, 2003); Migratory Bird Permits; Regulations for Double-Crested 13 Cormorant Management ("Final Rule"), 68 Fed. Reg. 58,022 (Oct. 8, 14 2003). The Final Rule established the Depredation Order, 50 15 C.F.R. § 21.48, and amended the Aquaculture Depredation Order, 50 16 C.F.R. § 21.47. 17 Before issuing the order, the FWS reviewed studies 18 related to the growth, breeding, and travel patterns of 19 cormorants in North America. Based on what it considered to be 20 the available science, the agency concluded that: 21 (1) [Cormorants] are generalist predators 22 whose diet varies considerably between 23 seasons and locations and tends to reflect 24 fish species composition; (2) The present 25 composition of cormorant diet appears to have 26 been strongly influenced by human-induced 27 changes in the natural balance of fish 28 stocks; (3) "Impact" can occur at different 29 scales, such that ecological effects on fish 30 populations are not necessarily the same as 31 effects on recreational or commercial 32 catches, or vice versa; (4) Cormorant impact12 1 is generally most significant in artificial, 2 highly managed situations; and (5) Because 3 environmental and other conditions vary 4 locally, the degree of conflicts with 5 cormorants will vary locally. 6 Final Rule, 68 Fed. Reg. at 58,025. The FWS noted that in 7 addition to the losses at aquaculture facilities resulting from 8 cormorant depredations, cormorants could also have an adverse 9 impact on other birds and local vegetation. Id. 10 In its final form, the Depredation Order "authorizes 11 State fish and wildlife agencies, Federally recognized Tribes, 12 and State Directors of the Wildlife Services program . . . to 13 prevent depredations on the public resources of fish . . . , 14 wildlife, plants, and their habitats by taking without a permit 15 double-crested cormorants found committing or about to commit, 16 such depredations." 50 C.F.R. § 21.48(c)(1). The rule requires 17 the initial use of non-lethal control methods, id. § 21.48(d)(1), 18 applies only to cormorants, id. § 21.48(d)(7), and mandates 19 specific measures intended to limit the impact of control efforts 20 on species protected under the Endangered Species Act, 21 id. § 21.48(d)(8). Agencies acting pursuant to the Depredation 22 Order must, for each year in which they intend to act, provide "a 23 one-time written notice" to the FWS indicating their intent to 24 act under the Depredation Order, id. § 21.48(d)(9),and they must 25 notify the FWS in writing thirty days in advance if any "single 26 control action . . . would individually, or a succession of such 27 actions . . . would cumulatively, kill more than 10 percent of 28 the double-crested cormorants in a breeding colony,"13 1 id. § 21.48(d)(9)(i). The FWS has the power to prohibit such 2 activity if the FWS deems it "a threat to the long-term 3 sustainability of double-crested cormorants or any other 4 migratory bird species." Id. § 21.48(d)(9)(ii). Agencies are 5 also required to submit annual reports describing their 6 activities under the Depredation Order, including numbers of 7 cormorants killed and nests whose eggs were oiled, 8 id. § 21.48(d)(10)-(11), and the FWS reserves the right to 9 suspend or revoke the authorityof any person acting pursuant to 10 the Depredation Order, id. § 21.48(d)(13). In addition to 11 adopting the Depredation Order, the FWS expanded the Aquaculture 12 Depredation Order to allow cormorants to be taken at their winter 13 roost sites. Final Rule, 68 Fed. Reg. at 58,031. 14 District Court Proceedings 15 In February 2004, the plaintiffs filed a complaint in 16 the United States District Court for the Southern District of New 17 York challenging, inter alia, the FWS's adoption of the 18 Depredation Order, asserting that it was contrary to treaties to 19 which the United States is a party, federal statutes, and FWS 20 regulations. The parties all eventually moved for summary 21 judgment. 22 In a Memorandum and Order filed March 29, 2005, the 23 district court concluded that the Depredation Order is not in 24 conflict with the MBTA because it balances the factors set forth 25 by the MBTA and determines "'when, to what extent, if at all, and 26 by what means' the taking of [cormorants] is permissible." Fund14 1 for Animals v. Norton, 365 F. Supp. 2d 394, 408-11 (S.D.N.Y. 2 2005) (quoting 16 U.S.C. § 704(a)). To the extent that the MBTA 3 requires a national approach to migratory bird management, the 4 district court reasoned, the requirement is not in conflict with 5 the Depredation Order's limited delegation of discretion to state 6 agencies and regional branches of the FWS because the FWS "has 7 not abdicated its authority, or granted states free reign over 8 management of the cormorant population," particularly in light of 9 the Depredation Order's notice requirements and limits placed on 10 the manner in which cormorants may be taken. Id. at 410-11. The 11 district court also concluded that the Depredation Order does not 12 conflict with the Mexico Convention. Although the Convention 13 requires that each nation establish "close seasons" during which 14 takings are prohibited, the district court deferred to the FWS's 15 view that this provision applies only to game birds, which the 16 parties agree do not include the cormorant. Id. at 412-14. 17 The district court rejected the plaintiffs' argument 18 that the defendants' adoption of the Depredation Order was 19 arbitrary and capricious, and contrary to the APA, for it found 20 that the record adequately demonstrates that: 1) the double21 crested cormorant adversely affects public resources; 2) the 22 Depredation Order is a reasonable method of effectuating the 23 goals of the MBTA; and 3) the Depredation Order does not conflict 24 with the FWS's internal regulations. Id. at 414-23. The court 25 also determined that the defendants had complied with the 26 requirements of NEPA by issuing the final EIS. Id. at 427-34.The plaintiffs have declined to challenge on appeal the 2 validity of the Aquaculture Depredation Order, 50 C.F.R. § 21.47, or the question whether the Depredation Order violates the Endangered Species Act, 16 U.S.C. § 1532 et seq. 15 1 The district court therefore granted the defendants' 2 motion for summary judgment, dismissing all of the plaintiffs' 3 claims. 4 The plaintiffs appeal the judgment of the district 5 court, but only as to some of the issues it decided.2 6 DISCUSSION 7 I. Standard of Review 8 "We review de novo a district court's ruling on 9 cross-motions for summary judgment, in each case construing the 10 evidence in the light most favorable to the non-moving party." 11 White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 12 163, 167 (2d Cir. 2007). Our review of the Depredation Order 13 under the APA, however, is limited. We may reverse an agency's 14 informal rulemaking if it was "arbitrary, capricious, an abuse of 15 discretion, or otherwise not in accordance with law." 5 U.S.C. § 16 706(2)(A); see also, e.g., Nat'l Black Media Coal. v. FCC, 822 17 F.2d 277, 280 (2d Cir. 1987). An agency's factual findings must 18 be supported by "substantial evidence," i.e., "less than a 19 preponderance, but more than a scintilla." Cellular Tel. Co. v. 20 Town of Oyster Bay, 166 F.3d 490, 493-94 (2d Cir. 1999). 21 Substantial evidence "means such relevant evidence as a 22 reasonable mind might accept as adequate to support a 23 conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 47716 1 (1951) (internal quotation marks and citation omitted). "The 2 reviewing court must take into account contradictory evidence in 3 the record, but the possibility of drawing two inconsistent 4 conclusions from the evidence does not prevent an administrative 5 agency's finding from being supported by substantial evidence." 6 Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 523 7 (1981) (citations and internal quotation marks omitted). When an 8 agency makes a decision in the face of disputed technical facts, 9 "[a] court must be reluctant to reverse results supported 10 by . . . a weight of considered and carefully articulated expert 11 opinion." Fed. Power Comm'n v. Florida Power & Light Co., 404 12 U.S. 453, 463 (1972). 13 In evaluating agency reasoning, we must be satisfied 14 that the agency examined the relevant data and established a 15 "rational connection between the facts found and the choice 16 made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. 17 Co., 463 U.S. 29, 43 (1983) (citation and internal quotation 18 marks omitted). 19 The agency's action should only be set aside 20 [if] it 'relied on factors which Congress has 21 not intended it to consider, entirely failed 22 to consider an important aspect of the 23 problem, offered an explanation for its 24 decision that runs counter to the evidence 25 before the agency, or is so implausible that 26 it could not be ascribed to a difference in 27 view or the products of expertise.' 28 Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir. 2000) 29 (quoting State Farm, 463 U.S. at 43), cert. denied, 531 U.S. 1070 30 (2001).17 1 II. Whether the Depredation Order Violates the MBTA 2 The plaintiffs argue that by delegating "management 3 authority" to the states and other agencies, the Depredation 4 Order violates the MBTA's requirement that any killings of 5 protected birds be specifically authorized by the FWS. We agree 6 with the district court, however, that the discretion granted to 7 these third parties is limited and subject to adequate oversight 8 by the FWS, and that the Depredation Order therefore does not 9 contravene the MBTA. 10 Delegation of statutory responsibility by federal 11 agencies and officers to outside parties is problematic because 12 "lines of accountability may blur, undermining an important 13 democratic check on government decision-making," U.S. Telecom 14 Ass'n v. FCC, 359 F.3d 554, 565 (D.C. Cir.), cert. denied, 543 15 U.S. 925 (2004), and because outside parties, whether private or 16 sovereign, might not "share the agency's national vision and 17 perspective," id. at 566 (internal quotation marks omitted). We 18 agree with the D.C. Circuit that, absent statutory authorization, 19 such delegation is impermissible. Id. 20 The MBTA authorizes the Secretary of the Interior "to 21 determine when, to what extent, if at all, and by what means" 22 takings may occur, 16 U.S.C. § 704(a), and "to adopt suitable 23 regulations permitting and governing the same," id., but the 24 statute does not specifically provide for this authority to be 25 delegated to third parties. Because any unauthorized delegation 26 of this authority beyond the agency would be impermissible, our18 1 inquiry focuses on whether the Depredation Order is, in fact, 2 such a delegation. 3 An agency delegates its authority when it shifts to 4 another party "almost the entire determination of whether a 5 specific statutory requirement . . . has been satisfied," U.S. 6 Telecom, 359 F.3d at 567, or where the agency abdicates its 7 "final reviewing authority," Nat'l Park & Conservation Ass'n v. 8 Stanton, 54 F. Supp. 2d 7, 19 (D.D.C. 1999). Agencies may seek 9 advice and policy recommendations from outside parties, but they 10 may not "'rubber-stamp' decisions made by others under the guise 11 of seeking their 'advice.'" U.S. Telecom, 359 F.3d at 568. If 12 all it reserves for itself is "the extreme remedy of totally 13 terminating the [delegation agreement]," Nat'l Park, 54 F. Supp. 14 2d at 20, an agency abdicates its "final reviewing authority," 15 id. at 19. 16 In the case at bar, the authority delegated by Congress 17 to the FWS under the MBTA bears little resemblance to the far 18 narrower band of discretion afforded to those acting under the 19 Depredation Order. The MBTA requires the Secretary "to determine 20 when, to what extent, if at all, and by what means, it is 21 compatible with the terms of the conventions" to permit takings 22 and killings of migratory birds. By contrast, third parties 23 acting pursuant to the Depredation Order are limited to takings 24 of cormorants, and cormorants only, and even then, solely "to 25 prevent depredations on the public resources of fish . . . , 26 wildlife, plants, and their habitats." 50 C.F.R. § 21.48(c).19 1 Even if we accept the plaintiffs' warning that the term 2 "depredation" is not explicitly defined by the FWS and could 3 include birds engaging in the natural behavior of eating fish 4 with no evidence of harm to a fish population overall, the 5 Depredation Order nonetheless restricts the species, locations, 6 and means by which takings in response to such depredations could 7 occur, thereby restricting the discretion that may be exercised 8 by third parties acting under the Order. 9 The Depredation Order therefore does not represent a 10 delegation of authority but is, instead, a permissible "grant of 11 permission [conditioned] on the decision of another entity, such 12 as a state, local, or tribal government, . . . [with] a 13 reasonable connection between the outside entity's decision and 14 the federal agency's determination." U.S. Telecom, 359 F.3d at 15 567. By adopting a rule that provides local agencies discretion 16 to determine what constitutes a "depredation" within a localized 17 context, the FWS was exercising its "broad permitting authority" 18 while incorporating "obviously relevant local concern[s] as . . . 19 element[s] of its decision process." Id. 20 As a practical matter, of course, by issuing the 21 Depredation Order, the FWS has limited its ability to regulate in 22 advance those takings that are authorized by the Order. In this 23 regard, the Depredation Order differs from the permit and 24 rulemaking system for handling requests for depredation permits 25 set forth at 50 C.F.R. §§ 21.41-21.42, which prohibits 26 depredation control efforts unless the FWS first affirmatively20 1 issues a permit or order, and which requires the FWS to consider 2 beforehand evidence of damage caused or about to be caused by 3 migratory birds. There is, however, no statutory requirement 4 that the FWS provide prior authorization in the form of a permit 5 for specific takings of migratory birds. The MBTA mandates only 6 "suitable regulations permitting and governing" takings. 16 7 U.S.C. § 704(a). The regulations restricting the taking of 8 migratory birds, even in the absence of an advance permitting 9 scheme, satisfy this statutory requirement. 10 It is also worth noting that the FWS does retain some 11 authority to regulate takings under the Depredation Order before 12 they occur. For example, the FWS must be notified 30 days in 13 advance of depredation control efforts that would "kill more than 14 10 percent of the double-crested cormorants in a breeding colony" 15 and may prevent any such efforts with simple notification. 50 16 C.F.R. § 21.48(d)(9)(i)-(ii). It may also suspend or revoke the 17 authority of third parties to act pursuant to the Depredation 18 Order if they do not adhere to the Order's "purpose, terms, and 19 conditions" or if the "long-term sustainability of double-crested 20 cormorant populations is threatened." Id. § 21.48(d)(13). 21 Finally, the Depredation Order requires third parties acting 22 under it to submit annual reports detailing their activities. 23 The reports are required to include, among other things, an 24 assessment of the effectiveness of control efforts, a description 25 of efforts made to minimize incidental takings, and a tally of 26 the number of cormorants and other migratory birds killed.21 1 Id. § 21.48(d)(10). In light of this oversight power and 2 monitoring authority, the FWS is amply equipped to monitor the 3 nationwide status of cormorant populations and to respond to 4 long-term effects on the species. 5 We conclude that the Depredation Order does not violate 6 the MBTA. 7 III. Whether the Depredation Order Conflicts with 8 Treaties to Which the United States Is a Party 9 Article II(A) of the Mexico Convention -- the only 10 treaty that refers specifically to cormorants -- requires "[t]he 11 establishment of close seasons, which will prohibit in certain 12 periods of the year the taking of migratory birds . . . ." 13 Mexico Convention, art. II, 50 Stat. at 1312. The plaintiffs 14 interpret this provision to apply to all migratory birds -- 15 whether or not they are game birds. In their view, the 16 Depredation Order's failure to provide for a close season renders 17 the order contrary to the treaty and therefore in violation of 18 the MBTA. See 16 U.S.C. § 704 (providing that the MBTA is 19 "[s]ubject to the provisions [of] and [designed] in order to 20 carry out the purposes of the conventions"). We think that the 21 Mexico Convention itself is ambiguous regarding the question of 22 whether the "close seasons" requirement applies to all migratory 23 birds. We therefore defer to the FWS's reasonable view that the 24 Convention requires a close season only for game birds, which the 25 parties agree do not include the cormorant. 26 "Respect is ordinarily due the reasonable views of the 27 Executive Branch concerning the meaning of an international22 1 treaty." El Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 2 155, 168 (1999); see also Sumitomo Shoji America, Inc. v. 3 Avagliano, 457 U.S. 176, 184-85 (1982) ("Although not conclusive, 4 the meaning attributed to treaty provisions by the Government 5 agencies charged with their negotiation and enforcement is 6 entitled to great weight."). 7 We will not create ambiguity where none exists, but the 8 text and structure of the Mexico Convention do not express a 9 clear intent regarding the need for a close season for all 10 migratory birds, as opposed to game birds –- a category that does 11 not include cormorants. Article II(A) refers to "the taking of 12 migratory birds," not the taking of "all migratory birds." That 13 section, moreover, creates an exception for "private game farms." 14 And Article II(C) specifies the minimum length of a close season 15 when "their hunting" would be limited, implicitly referring back 16 to the "migratory birds" referenced in subpart (A). These 17 provisions addressing hunting can reasonably be read to suggest 18 that the "migratory birds" at issue in Article II(A) include only 19 those that are hunted, i.e., game birds. 20 The distinction drawn in Article IV between game birds 21 and non-game birds does little to clarify the meaning of Article 22 II(A) in this regard. The fact that the states parties to the 23 treaty made this distinction makes it clear enough that they were 24 aware of the differences between the two. They therefore could 25 have specified "migratory game birds" at Article II(A) had they 26 meant that the requirement of close seasons applied only to gameThe plaintiffs also argue that even if Article II(A) is 3 ambiguous, the defendants' interpretation is not entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984), because the agency never expressly adopted this interpretation during the administrative process. Even if the FWS's interpretation had not been adopted prior to this litigation, however, it appears that we would still accord deference to the executive branch view concerning the meaning of the Mexico Convention. See United States v. De La Pava, 268 F.3d 157, 164 n.6 (2d Cir. 2001) (accepting the State Department's view concerning rights under the Vienna Convention, provided in response to questions posed by the Court of Appeals for the First Circuit). 23 1 birds. But it is also possible that they viewed this distinction 2 as implied by the kinds of protection described in Article II, 3 some of which clearly apply only to game birds, and some of which 4 do not. 5 The plaintiffs suggest that the references to hunting 6 at subpart (C), and to game farms at subpart (A) restrict the 7 meaning of subpart (A)'s "migratory birds" only for those 8 specific purposes. The "close season" requirement remains 9 applicable to all migratory birds. Even if we accept this 10 argument, however, there is nothing in the text or structure of 11 Article II that would foreclose the defendants' contrary 12 interpretation. The plaintiffs' interpretation of Article II(A) 13 is not unreasonable, but the treaty does not unambiguously 14 require such an interpretation. The agency's view -- that 15 Article II(A) refers only to migratory game birds -- is also a 16 reasonable one, and we therefore are required to accept it.3 17 IV. Whether the FWS Acted Arbitrarily or Capriciously 18 in Adopting the Depredation Order24 1 The plaintiffs contend that the FWS acted arbitrarily 2 and capriciously in adopting the Depredation Order. In their 3 view, the Order "authoriz[ed] a full-scale assault on the 4 protected birds" in the absence of evidence that cormorants were 5 having a widespread impact. Appellants' Br. at 46. We disagree. 6 Although the Depredation Order applies to about half 7 the states, depredation control efforts pursuant to the 8 Depredation Order may take place only where cormorants are found 9 "committing or about to commit" depredations and under specified 10 conditions. See 50 C.F.R. § 21.48(c)(1). By so limiting control 11 efforts, the Depredation Order provides a "rational connection 12 between the facts found and the choice made" and is therefore 13 neither arbitrary nor capricious. See State Farm, 463 U.S. at 43 14 (internal quotation marks omitted). 15 As the plaintiffs observe, the FWS does not provide 16 evidence that cormorants have a "widespread impact" on public 17 resources. Appellants' Br. at 46. But it is the FWS's position 18 that the agency was not required to make any such finding to 19 support the Depredation Order. In its review of studies 20 addressing the impact of cormorants on various types of public 21 resources, the FWS noted that "negative impacts are typically 22 very site-specific and thus [cormorant]-fish conflicts are most 23 likely to occur on a localized scale," Final Rule, 68 Fed. Reg. 24 at 58,025; that "[w]hile large-scale impacts on regional or 25 continental bird populations have not been documented" there was 26 evidence that other bird species could "be negatively impacted by25 1 [cormorants] at a site-specific level," id.; and that cormorants 2 caused significant financial loss at aquaculture facilities and 3 fish hatcheries, which are localized by their nature, id. at 4 58,026. Studies reviewed by the FWS also concluded that 5 cormorant predation had adverse impacts in states including 6 Wyoming, New York, and states in the Upper Midwest, South, and 7 Mississippi Delta region, whether in the form of cormorant diets 8 skewed heavily towards fish, or economic losses due to cormorant 9 predation at aquaculture or hatchery facilities. As the FWS 10 itself acknowledged, these studies did not provide a full picture 11 of the interaction between cormorants and local resources. The 12 FWS recognized the "need for more information about [cormorants] 13 and their impacts on resources across a variety of ecological 14 settings" and agreed with critics of the Depredation Order that 15 "better information on population status and trends is 16 desirable." Id. at 58,023. What the FWS did establish, though, 17 was that in a large number of states, cormorants were responsible 18 for localized, site-specific harm to public resources, even if 19 not on a state-wide basis. 20 The remaining question, then, is whether the 21 Depredation Order is a reasonable response to this evidence of 22 harm. In light of the limited discretion afforded by the 23 Depredation Order, we conclude that it is. The express intent of 24 the Order is "to enhance the ability of resource agencies to deal 25 with immediate, localized [cormorant] damages." Id. And that is 26 precisely what the Depredation Order does. It applies only to26 1 the public resources of affected states, 50 C.F.R. § 21.48(b), 2 (c)(1), and takings are permitted only of those cormorants 3 "committing or about to commit . . . depredations," id. § 4 21.48(c)(1). All takings must be recorded and detailed in annual 5 reports. The FWS must be notified in advance of activity that 6 would result in the taking of more than 10 percent of a breeding 7 colony. The FWS may also prevent such activity if it is deemed a 8 threat to the long-term sustainability of cormorants. These 9 restrictions adequately limit depredation control activities 10 under the Depredation Order to address the types of harm the FWS 11 specifically found are caused by cormorants. Although, as 12 discussed, there may be some uncertainty in the meaning of 13 "depredation," the discretion provided by the Depredation Order 14 to local agencies to determine when depredations occur is not so 15 expansive that it would render the order arbitrary and 16 capricious. 17 The plaintiffs also argue that instead of the 18 Depredation Order, the FWS should have adopted a "less drastic 19 liberalized permitting scheme" similar to some of the 20 alternatives considered by the FWS. Appellants' Br. at 49. 21 Perhaps such an approach would be a better response than the 22 Depredation Order in providing local agencies with some degree of 23 flexibility, addressing actual cormorant damage, and avoiding 24 unnecessary takings of cormorants. However, the FWS has 25 articulated adequate explanations for its choice not to adopt 26 this, or another, alternative approach, preferring to grant local27 1 agencies a degree of flexibility that the FWS thinks will more 2 "adequately address resource damages caused by [cormorants]" than 3 permit-based approaches. Final Rule, 68 Fed. Reg. at 58,034. It 4 is, of course, typically the case that there are several 5 different possible responses to a given problem, more than one of 6 which may be rational. In this case, the Depredation Order 7 represents one rational response to the problem of cormorant 8 depredation based on evidence available to the FWS, and the FWS 9 has explained its reasons for choosing one rational response over 10 others. This is the limit of our inquiry, see Citizens to 11 Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), 12 and we therefore conclude that the FWS complied with the APA in 13 adopting the Depredation Order. 14 V. Whether the FWS Complied with NEPA in Adopting 15 the Depredation Order 16 In order to adopt the Depredation Order, the FWS was 17 required by NEPA to prepare an EIS that would "provide full and 18 fair discussion of significant environmental impacts and . . . 19inform decisionmakers and the public of the reasonable 20alternatives which would avoid or minimize adverse impacts or 21enhance the quality of the human environment." 40 C.F.R. 22§ 1502.1; see 42 U.S.C. § 4332(2)(C). "NEPA is a procedural 23 statute that mandates a process rather than a particular 24 result. . . . [It] does not command an agency to favor any 25particular course of action, but rather requires the agency to 26withhold its decision to proceed with an action until it has taken 27a 'hard look' at the environmental consequences." Stewart Park &28 1Reserve Coal., Inc. (SPARC) v. Slater, 352 F.3d 545, 557 (2d Cir. 2 2003) (internal citation omitted). The court's role is to ensure 3that NEPA's procedural requirements have been satisfied, not to 4 "interject itself within the area of discretion of the executive 5as to the choice of the action to be taken." Kleppe v. Sierra 6Club, 427 U.S. 390, 410 n.21 (1976) (internal quotation marks 7omitted). 8 Where there is uncertainty regarding the potential 9effects of an agency action, "speculation in an EIS is not 10precluded, [but] the agency is not obliged to engage in endless 11hypothesizing as to remote possibilities." County of Suffolk v. 12 Sec'y of Interior, 562 F.2d 1368, 1379 (2d Cir. 1977). Even where 13this uncertainty arises from disparate state and local regulation 14that may affect federal action, we have not required detailed 15information regarding the effects of these regulations in an EIS 16where such "information would be of little or no utility in 17determining the impact of state and local exercise of regulatory 18powers, since each of the states and municipalities affected could 19change its regulations . . . between the publication of the EIS" 20and the time when such local regulations would affect the federal 21action. Id. 22 The plaintiffs point to the lack of site-specific or 23localized analysis in the EIS as evidence that the FWS violated 24NEPA's requirement to examine and permit the public to comment on 25the environmental impact of the proposed Depredation Order. But 26under the order, the FWS did not commit itself to any site-29 1 specific actions, and it would have been largely speculative for 2the FWS to identify the specific, localized areas where control 3efforts under the order would take place. We therefore do not 4think that the FWS was obligated under NEPA to include site5 specific analyses in the EIS. 6 Under the Depredation Order, local agencies have 7discretion to select the particular sites at which to pursue 8depredation control efforts, subject of course to the constraints 9set forth in the Depredation Order. The Depredation Order does 10not itself mandate that local agencies utilize their authority 11under the Order. And, because cormorant depredation is highly 12 localized, and because the Depredation Order limits control 13efforts only to those cormorants "found committing or about to 14 commit" depredation, the exact locations where local agencies 15might act pursuant to the Depredation Order could not be known 16with any certainty by the FWS in advance. These compounded 17uncertainties would render any site-specific EIS virtually 18 impossible to prepare. Not only would it be uncertain where 19control efforts under the Depredation Order could take place, it 20would remain uncertain whether any control efforts actually would 21take place there. The FWS had no means of reliably identifying 22the relevant sites, let alone ascertaining whether any actions 23under the Depredation Order would be warranted at that site. 24Effects that are not reasonably foreseeable need not be included 25in an EIS. See 40 C.F.R. § 1508.8 (including as effects for EIS 26purposes those "which are caused by the action and are later in30 1time or farther removed in distance, but are still reasonably 2 foreseeable"); Suffolk County, 562 F.2d at 1378 ("If the 3additional information would at best amount to speculation as to 4 future event or events, it obviously would not be of much use as 5input in deciding whether to proceed."). The FWS therefore did 6not violate NEPA by omitting site-specific analyses in this case. 7 In the absence of any certain site-specific action, 8then, it was sufficient for the FWS here to prepare only a 9programmatic EIS. See 40 C.F.R. § 1502.4(c) (Environmental impact 10 statements on "broad actions" may be prepared "[g]enerically, 11 including actions which have relevant similarities, such as common 12timing, impacts, alternatives, methods of implementation, media, 13or subject matter."); see also Friends of Yosemite Valley v. 14Norton, 348 F.3d 789, 801 (9th Cir. 2003) ("NEPA requires a full 15evaluation of site-specific impacts only when a 'critical 16decision' has been made to act on site development -- i.e., when 17the agency proposes to make an irreversible and irretrievable 18 commitment of the availability of resources to [a] project at a 19particular site. The determination of whether a 'critical 20decision' has been made begins with an accurate description of the 21 [agency's] proposed action." (emphases, internal quotation marks, 22and citations omitted)). Any site-specific actions to which the 23FWS or any other agency subsequently committed would require the 24preparation of a site-specific EIS – even if the action were 25undertaken pursuant to the Depredation Order -- if the 26programmatic EIS is insufficient to address the environmental31 1 impact of the site-specific action. See Nat'l Audubon Society v. 2Hoffman, 132 F.3d 7, 13 (2d Cir. 1997) (citing Manatee County v. 3Gorsuch, 554 F. Supp. 778 (M.D. Fla. 1982)). But because the 4 Depredation Order itself does not commit FWS to any site-specific 5control efforts, its adoption did not require any corresponding 6site-specific EIS. 7 The FWS did not violate NEPA in adopting the Depredation 8Order. 9 CONCLUSION 10 We have considered the plaintiffs' remaining arguments 11and find them to be without merit. For the foregoing reasons, the 12 judgment of the district court is affirmed.