The American Bald v. Bhatti

• Court: Court of Appeals for the First Circuit
• Decided: November 16, 1993
• Docket: 92-2387
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

          No. 92-2387

                           THE AMERICAN BALD EAGLE, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                                ILYAS BHATTI, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                         Torruella and Stahl, Circuit Judges,
                                              ______________

                         and DiClerico, Jr.,* District Judge.
                                              ______________

                                _____________________

               Florence Mansbach,  with whom  Steven M.  Wise and  Fraser &
               _________________              _______________      ________
          Wise, P.C., were on brief for appellants.
          __________
               Mary C.  Connaughton, Assistant Attorney  General, with whom
               ____________________
          Scott Harshbarger, Attorney General,  and Rebbeca Webb, Assistant
          _________________                         ____________
          Attorney General, were on brief for appellees.

____________________

                                  November 16, 1993
                                 ____________________

____________________

          *  Of the District of New Hampshire, sitting by designation.

TORRUELLA, Circuit Judge.   The issue to  be decided by
                               _____________

          this appeal  is whether  the hunting of  deer on  a Massachusetts

          reservation significantly affects bald eagles so as to constitute

          a prohibited "taking" of that  endangered species1 as defined  by

          the Endangered  Species Act  ("ESA").2  16  U.S.C.     1532(19) &

          1538(a)(1)(B).   How we  get from a  deer hunt  to an  allegation

          regarding   the  taking  of  bald  eagles  requires  considerable

          explanation.

          I.  BACKGROUND
          I.  BACKGROUND
              __________

                    The  Massachusetts Division  of Fisheries  and Wildlife

          ("DFW") operates a restoration project for bald eagles on Quabbin

          Reservation   in   Eastern  Massachusetts   ("Quabbin").     This

          reservation covers an area of approximately 125  square miles and

          contains a 25,000 acre reservoir.  According to the DFW  the bald

          eagle  population has ranged from  a low of 13 in  1982 to an all

          time high of 45 in 1992.  In that year, the  statewide population

          of bald eagles was estimated at 60.

                    In 1986, the  Metropolitan District Commission  ("MDC")

          began to  investigate the  impact of deer  feeding habits  on the

          forest at  Quabbin.  Among  other findings, the  study determined

          that the deer  population at Quabbin  far exceeded the  statewide

          average of 6-8 deer per square mile.  It was concluded  that this
                              
          ____________________

          1  The bald eagle is listed as  an endangered species.  50 C.F.R.
            17.11 (1992).

          2   The defendant-appellees in this case  are Ilyas Bhatti in his
          capacity as  Commissioner of the Metropolitan District Commission
          and  Wayne   McCallum  in  his   capacity  as  Director   of  the
          Massachusetts Division of Fisheries and Wildlife.

                                         -2-

was the  result of a  then existing deer hunting  prohibition and

          the decline of natural predators in the Reservation.  It was also

          found  that  deer  consumption of  tree  seedlings  was gradually

          eliminating the root  system necessary for the  soil to act  as a

          filter  for  pollutants.   This  in turn  posed a  threat  to the

          quality of water  at the Reservoir.  After  considering a variety

          of  alternatives, the MDC concluded that the only effective means

          of addressing the underlying problem was to allow controlled deer

          hunting in the reservation.

                    Legislation was  subsequently enacted  by the  State to

          permit a limited deer hunt  at Quabbin under the MDC's authority.

          Mass. Regs. Code tit. 350,    8.02 (1991).  Thereafter,  the MDC,

          aided  by DFW recommendations,  developed a deer  management plan

          that attempted to  ensure that the eagles would  not be disturbed

          by the deer hunt.

                    In  the fall of 1991, appellants brought this action to

          enjoin the  limited  deer hunt  on  the ground  that  it posed  a

          significant risk  to the bald  eagles at Quabbin in  violation of

          the ESA.    16 U.S.C.      1538(a)(19) &  1532(19) (1985).    The

          nucleus of  their allegation was  as follows:   some of the  deer

          shot by  hunters during the  Quabbin hunt would not  be recovered

          but would die  thereafter within the feeding area  of the Quabbin

          bald  eagles;  these  deer,  termed  "cripple-loss  deer,"  would

          contain lead  in their  bodies from  the lead  slugs used  by the

          hunters  as  ammunition; and  bald  eagles  would  feed on  these

          unrecovered deer carcasses, consume a  portion of the lead in the

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deer, and be harmed by the lead.

                    The district  court denied  the preliminary  injunction

          ruling that appellants  failed to show a reasonable likelihood of

          success  on  the  merits.     The  hunt  proceeded  as   planned.

          Appellants  then requested a permanent injunction which the court

          also  denied because it  concluded that the  hunt did not  pose a

          significant  risk  of harm  to  the  bald  eagles.   This  appeal

          followed.

          II.  LEGAL STANDARD
          II.  LEGAL STANDARD
               ______________

                    Appellants make  two legal  challenges to  the district

          court's decision.   Appellants  first contend  that the  district

          court  applied  the wrong  legal  standard in  holding  that they

          failed to prove that the  proposed Quabbin Reservation deer  hunt

          posed a significant risk of harm to its bald eagles.   Appellants

          next argue that  the district court erred  as a matter of  law by

          failing  to define "significant risk."  This failure, they argue,

          under  Federal  Rule  of  Civil  Procedure  52(a),  violated  the

          requirement  that the  court find the  facts specially  and state

          separately its conclusions of law thereon.  We review these legal

          challenges de novo.  In re: Extradition of Howard, 996 F.2d 1320,
                     _______   ____________________________

          1327  (1st  Cir. 1993);  Societ   des  produits  Nestl   v.  Casa
                                   ______________________________      ____

          Helvetia, Inc., 982 F.2d 633, 642 n.9 (1st Cir. 1992).
          ______________

                    The  ESA  prohibits  the   "taking"  of  an  endangered

          species.  16  U.S.C.   1538(a)(1)(B).  The ESA  defines "take" as

          follows:   "To harass,  harm, pursue, shoot,  wound, kill,  trap,

          capture, or to attempt to engage in any such conduct."  16 U.S.C.

-4-

1532(19).    Appellants  ask that  we  establish  a  numerical

          standard for determining  which actions constitute a  "taking" of

          an endangered  species.  They would have  us establish that a one

          in  a  million  risk  of   harm  is  sufficient  to  trigger  the

          protections of the  ESA.  We  reject this  invitation as we  find

          nothing in the ESA,  its regulations or legislative  history that

          supports such an arbitrary figure.

                    Rather  than  convince  us   to  adopt  a   restrictive

          numerical  standard for harm under the ESA, appellants' analogies

          to  other regulatory regimes demonstrate that the exact numerical

          standard for permissible harm or risk of harm varies according to

          the context.   For  example, while  a risk  of one  in a  hundred

          thousand has  been thought  to be appropriate  in the  context of

          regulating benzene  emissions from  coke  by-product plants,  see
                                                                        ___

          National  Emission Standard for Hazardous Air Pollutants, 49 Fed.

          Reg. 23,521, 23,527 (1984), a definition of  one in a million has

          been  considered more appropriate in other circumstances, such as

          in the analysis of carcinogenicity  data, see 45 Fed. Reg. 36,942
                                                    ___

          (Environmental  Protection  Agency:     Proposed  Guidelines  for

          Carcinogen  Risk Assessment); see  also Public Citizen  v. Young,
                                        _________ ______________     _____

          831 F.2d  1108, 1112-13 n.4  (D.C. Cir. 1987), cert.  denied, 485
                                                         _____________

          U.S.  1006  (1988).    In  the  examples   cited  by  appellants,

          regulatory  agencies,  like  the   EPA,  adopted  numerical  risk

          standards only after consideration  of extensive scientific data,

          publication  of  proposed  standards  for   public  comment,  and

          extensive public hearings.   Here, none of  these procedures have

-5-

occurred and  appellants provide  no other  convincing basis  for

          blindly  applying  a  numerical  standard  developed  in  another

          context   to  the   definition  of   "taking"   under  the   ESA.

          Furthermore, the cases cited by  appellants arise in the  context

          of  regulations involving  the use  of substances that  have been

          scientifically proven to be harmful to humans.  See, e.g., Public
                                                          ___  ____  ______

          Citizen,   831  F.2d   1108  (carcinogens  in   food  additives);
          _______

          International Union, UAW v. Pendergrass,  878 F.2d 389 (D.C. Cir.
          ________________________    ___________

          1989) (OSHA regulation of formaldehyde).  In contrast, appellants

          have presented  no studies that have  shown that the use  of lead

          slugs in deer hunts has  been scientifically proven to cause harm

          to bald eagles.3

                    The proper standard for establishing a taking under the

          ESA, far  from being  a numerical probability  of harm,  has been

          unequivocally  defined  as  a  showing  of "actual  harm."    The

          Secretary of  Interior has defined  "harm," as it appears  in the

          ESA  statute, setting out  what constitutes a  prohibited taking,

          see discussion supra p. 4, as:
          ___            _____

                      an  act which  actually kills  or injures
                      wildlife.    Such  an   act  may  include
                      significant   habitat   modification   or
                      degradation  where it  actually kills  or
                      injures    wildlife    by   significantly
                              
          ____________________

          3  Appellants  did present a study showing  that the ingestion of
          No. 4  lead shot  caused harm  to bald  eagles.   In  that study,
          eagles were fed ten  pellets of lead shot  a day for a  period of
          ten to  fifteen days.   In the present case,  however, appellants
          have not shown  that eagles have eaten or will eat any lead slugs
          (a considerably larger caliber than  No. 4 shot) as a consequence
          of  the deer hunts.   Furthermore, one of  the limitations of the
          Quabbin deer hunt  was that hunters could use only lead slugs, no
          bullets and no shot. 

                                         -6-

impairing essential  behavioral patterns,
                      including     breeding,     feeding    or
                      sheltering.

          50 C.F.R.    17.3  (1992).  In  formulating this  definition, the

          Secretary has explained that:

                      Congress  made  its   intent  to  protect
                      species  very  clear.  .  .  .    in  the
                      preamble  to the  original definition  of
                      harm:   "Harm" covers actions . . . which
                      actually  (as  opposed  to  potentially),
                      cause injury . . . .

                      The purpose of the rulemaking was to make
                      it  clear  that  an actual  injury  to  a
                                          ______
                      listed species must be found for there to
                      be a taking under Section 9.

          46 Fed. Reg. 54,748, 54,749 (1981).

                    Clearly, then, for  there to be  "harm" under the  ESA,

          there must be actual injury  to the listed species.  Accordingly,

          courts have granted injunctive relief only where petitioners have

          shown that the alleged  activity has actually harmed  the species

          or if continued  will actually, as opposed to  potentially, cause

          harm   to  the   species.     See   Defenders   of  Wildlife   v.
                                        ___   ________________________

          Administrators, 882 F.2d 1294 (8th Cir. 1988) (enjoining the  EPA
          ______________

          from continuing its registration of strychnine after finding that

          continued registration of the substance resulted in poisonings of

          protected species);  Sierra Club  v. Yeutter,  926 F.2d 429  (5th
                               ___________     _______

          Cir. 1991) (enjoining the United States Forest Service from even-

          aged  lumbering  following  documentation   by  scientists  of  a

          dramatic decline in  active Red Cockaded Woodpecker  colonies and

          findings by the  court tracing the decline directly  to Service's

          lumbering  practices).   See  also  National  Wildlife  Fed'n  v.
                                   _________  _________________________

-7-

National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987) (no "taking"
          ___________________

          where a plan was designed to reduce conflicts between man and the

          grizzly bear and in the first season of operation under the plan,

          there were no bear mortalities). 

                    In this case, appellants  have not shown that the  hunt

          caused actual harm.  Our review of the record indicates that bald

          eagles  can  be  harmed by  the  ingestion  of lead.    There is,

          however, no evidence in the record of any harm to the bald eagles

          at Quabbin as a  result of the 1991 deer hunt.   See Pauite Tribe
                                                           ___ ____________

          v. U.S. Dept.  of the Navy, 898  F.2d 1410, 1420 (9th  Cir. 1990)
             _______________________

          (activity must  cause the harm).   There is no  evidence that any

          eagles at Quabbin actually ingested  lead slug or that any eagles

          ate deer carrion containing lead slug.   After hearing all of the

          evidence, and considering  among other factors the  likelihood of

          the  presence  of lead  in cripple-loss  deer, the  likelihood of

          ingestion  of  lead  by  eagles  feeding on  the  deer,  and  the

          likelihood  that if  an eagle  ingests  lead, it  will be  harmed

          thereby,  the  district judge  was  not persuaded  that  the bald

          eagles would be  harmed by the proposed  hunt.  We find  that the

          record fully supports the conclusion of the trial judge.4   
                              
          ____________________

          4  We note that the  ESA definition of "take," includes the  term
          "harass."   50 U.S.C.   1532(19).   The regulations of the United
          States Fish and Wildlife Service define "harass" as:

                      an  intentional  or negligent  act  which
                      creates  the  likelihood   of  injury  to
                      wildlife by annoying it to such an extent
                      as   to   significantly   disrupt  normal
                      behavioral patterns which include but are
                      not  limited  to, breeding,  feeding,  or
                      sheltering.

                                         -8-

Appellants' challenge of  the district court's decision

          for allegedly  failing to  give specific  findings under  Federal

          Rule  of  Civil Procedure  52(a)  is  also  without merit.    The

          district  court  clearly   stated  the  relevant  statutory   and

          regulatory provisions.  To  the extent that the district  court's

          decision rested upon  an interpretation of these  provisions that

          varies from that which we  have established, the court employed a

          more  liberal  interpretation  of  the  statutory  requirements.5

          Moreover,  the court  made  clear  factual  findings.   As  such,

          appellants'  Rule 52(a)  challenge  fails.   We  do  not find  it

          necessary for  the court to  numerically define  the standard  it

          applies in  order to comply with this rule.  Furthermore, we find

          that the record adequately supports  a finding that the  proposed

          deer hunt  does not constitute  a "taking" within the  meaning of

____________________

          50 C.F.R.   17.3 (1992).

             Because  appellants have  not  shown  that  bald  eagles  have
          ingested  lead slugs nor  fragments thereof during  past hunts or
          will ingest lead slugs or fragments thereof during future  hunts,
          we have no reason to consider whether the ingestion of lead slugs
          or fragments thereof  would lead to a disturbance  of the eagles'
          behavior  pattern  to  the   extent  that  it  would   amount  to
          "harassment" of the bald eagles.

          5   The  district court  correctly stated  that the  issue to  be
          decided was "whether the hunt will cause  harm or whether it will
          harass, or cause the [b]ald [e]agle to be harassed."  The parties
          agreed that the plaintiffs  had the burden  of proof and that  in
          order  to prevail  they must  show that  "the  deer hunt  poses a
          significant risk  of harm to  the [b]ald [e]agle."   By requiring
          the plaintiffs to show only  "a significant risk of harm" instead
          of "actual harm,"  the district court required a  lower degree of
          certainty  of harm  than we interpret  the ESA  to require.   The
          appellants certainly cannot meet this court's standard of "actual
          harm" if the  district court found that they failed to prove that
          even a "significant risk of harm" existed.

                                         -9-

the ESA.6

          III.  CREDIBILITY OF WITNESSES
          III.  CREDIBILITY OF WITNESSES
                ________________________

                    Appellants claim that the  district court clearly erred

          by discounting the  testimony of appellants' experts  and finding

          more credible the  testimony of appellees' experts  regarding the

          effect of the deer hunt on bald eagles at Quabbin. 

                    We review the district court's credibility findings for

          clear  error.  Brennan  v. Carvel Corp.,  929 F.2d  801, 806 (1st
                         _______     ____________

          Cir. 1991) (in non-jury trials, findings of fact based on oral or

          documentary evidence should  only be set aside  for clear error).

          See also  Anderson v. Bessemer  City, 564 U.S. 575  (1984) (where
          ________  ________    ______________

          there are two permissible views of the evidence, the factfinder's

          choice between them cannot be  clearly erroneous).  On the record

          presented, the  district court did not err.   Thus, we affirm the

          findings of the district court.

          IV.  EXCLUSION OF APPELLANTS' EXHIBITS FROM EVIDENCE
          IV.  EXCLUSION OF APPELLANTS' EXHIBITS FROM EVIDENCE
               _______________________________________________

                    Appellants  posit  that  the  lower  court  erroneously
                              
          ____________________

          6  We  are aware of the decision of  National Wildlife Federation
                                               ____________________________
          v. Hodel, 23 Env't Rep. Cas. (BNA) 1089 (E.D. Cal. Aug. 26, 1985)
             _____
          in which  a court enjoined  hunting of migratory birds  with lead
          shot, finding a  "taking" of the bald eagle.  We believe that the
          present case is  easily  distinguishable.  In  National Wildlife,
                                                         _________________
          the  defendant had published a  proposed rule stating that "there
          is  a substantial  likelihood that  lead shot  used by  waterfowl
          hunters poses a threat to  bald eagles" and significant  evidence
          indicated  that  most  lead  shot  that  poisons  bald  eagles is
          consumed by the eagles when  they feed upon other migratory birds
          that are themselves  either ill due to consumption  of lead shot,
          or have been wounded or killed by  lead shot but not retrieved by
          hunters.    In the  present  case,  the  defendant made  no  such
          admission  and the  evidence did  not  indicate that  eagles were
          poisoned  by   feeding  on   deer  carcasses.     Id.  at   1090.
                                                            ___
          Furthermore, the  present case concerns  the use of  lead "slugs"
          rather than lead "shot."

                                         -10-

excluded appellants' exhibits  11, 11A, 11B, 11C, 12  and 13 from

          evidence.    We   disagree.    Appellants  offered   as  exhibits

          highlighted  portions of  documents  which  the  court  found  to

          contain only portions  of sentences taken out of  context.  These

          exhibits were offered by appellants as either self-authenticating

          documents or admissions.   Appellees objected to  their admission

          on the grounds of completeness and that the statements were taken

          out of context and stated during trial "we only prefer . . . that

          the  entire document  be  admitted  in  evidence, as  opposed  to

          highlighted portions."  

                    Pursuant to  Federal Rule  of Evidence  106, "[w]hen  a

          writing  .  . .  or part  thereof  is introduced  by a  party, an

          adverse party  may require the  introduction .  . . of  any other

          part   .  .   .   which   ought   in   fairness   be   considered

          contemporaneously with  it."   Appellants argue  in their  briefs

          that "as the defendants did not even dispute the admissibility of

          the entire documents, the Court  was bound to accept the portions

          offered by the  plaintiffs and allow the defendants  to offer any

          additional portions  . . . ."   The record shows that  it was not

          appellees, but  appellants who vehemently  opposed admitting into

          evidence   the  entire  document  which  would  put  the  phrases

          contained  in their offered  exhibits into context.   In essence,

          before  making  a  final ruling  on  the  admissibility  of these

          statements, the  lower court  let appellants  choose whether  the

          entire documents or  no portions thereof would be  admitted.  The

          court  did not  abuse its  discretion in  refusing to  admit only

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misleading portions of documents taken out of context.7

                    Affirmed.
                    ________

____________________

          7  We have  no occasion to review the lower  court's finding that
          the exhibits appellants  sought to admit into  evidence contained
          portions of  sentences taken out  of context.  Appellants  do not
          argue that they were in context and on appeal, they have supplied
          us with entire  pages taken from those documents from which it is
          impossible to ascertain which portions they wished admitted.  

                                         -12-