Friends of Animals v. United States Fish & Wildlife Service , 879 F.3d 1000 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRIENDS OF ANIMALS; PREDATOR No. 15-35639
DEFENSE,
Plaintiffs-Appellants, D.C. No.
6:14-cv-01449-
v. AA
UNITED STATES FISH AND WILDLIFE
SERVICE, an agency of the United OPINION
States,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted October 5, 2017
Portland, Oregon
Filed January 10, 2018
Before: Diarmuid F. O’Scannlain, Richard A. Paez,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
2 FRIENDS OF ANIMALS V. USFWS
SUMMARY *
Migratory Bird Treaty Act
The panel affirmed the district court’s summary
judgment in favor of the U.S. Fish and Wildlife Service in
an action brought by plaintiff animal advocacy groups
challenging the Service’s permit allowing the taking of the
barred owl.
Plaintiffs alleged that the permit was unlawful because
under the Migratory Bird Treaty Act (“MBTA”), when the
Service permits a take for scientific purposes, the action
must be intended to advance the conservation or scientific
understanding of the same species.
The panel held that the MBTA imposed few substantive
conditions itself, and delegated to the Secretary of the
Interior broad discretion to implement the MBTA. The
panel rejected plaintiffs’ contention that the MBTA’s
underlying Conventions codified the same-species theory,
which was then binding on the Service through the MBTA’s
“consistency” provision. Specifically, the panel held that the
“used for scientific purposes” exception in Article II(A) of
the Mexico Convention included taking birds to study
whether their absence benefits another protected bird
species. The panel also held that the canon of noscitur a
sociis did not compel a reading of the Mexico Convention to
imply a same-species limitation. The panel further held that
Canada, Japan, and Russia Conventions, if they even applied
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
FRIENDS OF ANIMALS V. USFWS 3
to this case, did not require a same-species limitation when
taking migratory birds for scientific purposes.
The panel held that because the plain text of the MBTA
and the Conventions did not compel a same-species
limitation, the panel need not consider the question of
deference to the agency’s interpretation.
COUNSEL
Michael Ray Harris (argued) and Jennifer E. Best, Friends
of Animals, Centennial, Colorado, for Plaintiffs-Appellants.
Rachel E. Heron (argued), David Shilton, and Andrew
Mergen, Attorneys, Appellate Section; Coby Howell,
Attorney, Wildlife & Marine Resources Section; John C.
Cruden, Assistant Attorney General; Environment and
Natural Resources Division, United States Department of
Justice, Washington, D.C.; Diane Hoobler, Senior Attorney,
Pacific Northwest, Regional Solicitor’s Office; Philip Kline,
Attorney-Advisor, Office of the Solicitor, United States
Department of the Interior, Portland, Oregon; for Defendant-
Appellee.
4 FRIENDS OF ANIMALS V. USFWS
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the Migratory Bird Treaty Act
allows the United States government to issue a permit to
remove birds of one species for scientific purposes if its
intent is principally to benefit another species.
I
A
This case arises from efforts by the United States Fish
and Wildlife Service (“Service”) to balance the interests of
two types of owls who compete for the same territory. The
first is the northern spotted owl, whose range is from British
Columbia to California but the majority of which are “found
in the Cascades of Oregon and the Klamath Mountains in
southwestern Oregon and northwestern California.” See
Endangered and Threatened Wildlife and Plants;
Determination of Threatened Status for the Northern Spotted
Owl, 55 Fed. Reg. 26,114, 26,115 (June 26, 1990). In 1990,
the Service determined the northern spotted owl to be a
threatened species pursuant to the Endangered Species Act
of 1973, 16 U.S.C. §§ 1531 et seq. See 55 Fed. Reg. at
26,114. The principal reason for the decline in the
population was the loss of old-growth forest habitats on
which the species relies. Id.
A second factor in the northern spotted owl’s population
decline, however, involved another species of owl at issue in
this case: the barred owl. The barred owl’s “adaptability and
aggressive nature appear to allow it to take advantage of
habitat perturbations,” and it has spread from its native
habitat in the eastern United States to the Northwest, where
FRIENDS OF ANIMALS V. USFWS 5
it has come greatly to outnumber the native northern spotted
owls. Id. at 26,191. Barred owls’ diets can overlap with
spotted owls’ by as much as 76%, and the more aggressive
barred owl may displace spotted owls and may even
physically attack them.
This litigation arises from the Service’s 2008 recovery
plan for the northern spotted owl. Although that plan
includes a significant focus on habitat preservation, the
Service also concluded that “the barred owl constitutes a
significantly greater threat to spotted owl recovery than was
envisioned when the spotted owl was listed in 1990,” and,
“[a]s a result, the Service recommend[ed] specific actions to
address the barred owl threat.” One of those actions was to
“[d]esign and implement large-scale control experiments in
key spotted owl areas to assess the effects of barred owl
removal on spotted owl site occupancy, reproduction, and
survival,” experiments that the Service hoped would
“substantially expand our knowledge of the ecological
interactions between spotted owls and barred owls” and
“identify important cause-and-effect relationships between
barred owls and the population declines of spotted owls, as
well as the densities at which negative effects from barred
owls occur.” An updated recovery plan issued in 2011
retained this experimental action item.
To carry out the proposed study, the Service went
through a notice-and-comment process to prepare an
Environmental Impact Statement for the experiment. See
Experimental Removal of Barred Owls To Benefit
Threatened Northern Spotted Owls; Final Environmental
Impact Statement, 78 Fed. Reg. 44,588 (July 24, 2013). The
Service adopted an experimental design that would involve
taking about 3,600 barred owls over four years, affecting
6 FRIENDS OF ANIMALS V. USFWS
about 0.05% of the barred owls’ range. 1 The Service
predicted that “[b]arred owl populations are anticipated to
return to starting levels within 3 to 5 years of the end of . . .
removal.” To allow the experiment to proceed, the Service
stated that it would “issue a scientific collecting permit” (the
“permit”), pursuant to 50 C.F.R. § 21.23, “for the lethal and
non-lethal take as required under the Migratory Bird Treaty
Act.” The Service, through its Migratory Bird Permit Office,
issued the permit to a branch of itself, the Oregon Fish and
Wildlife Office. In 2014, due to delays caused by funding
issues, that office requested a modified permit reducing the
total take from 3,600 to 1,600 barred owls. The modification
was granted, and a memorandum accompanying the new
permit stated that “[t]he take of Barred Owls requested in
this application is for bona fide scientific research” that
“advances the scientific understanding of both species” of
owls.
B
Friends of Animals and Predator Defense (collectively,
“Friends”) are not-for-profit animal advocacy organizations
that objected to the experiment that would see the Service
kill birds of one species to conserve another, and they filed
suit in the Eastern District of California to challenge the
permit allowing the taking of the barred owls. That case was
dismissed for lack of standing because the only member of
Friends who alleged personal injury caused by the Service’s
actions planned to visit only areas where the Service did not
1
“To ‘take,’ when applied to wild animals, means to reduce those
animals, by killing or capturing, to human control.” Babbitt v. Sweet
Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 717 (1995). As
the Service acknowledges, the “vast majority of take” at issue in this case
consists of “intentional, lethal take of barred owls.”
FRIENDS OF ANIMALS V. USFWS 7
plan to take barred owls and so could not show that he had
“any concrete plans to visit an area that will be affected by
the conduct that impairs his interests.” Friends of Animals
v. Jewell, No. 13-CV-02034, 2014 WL 3837233, at *5–8
(E.D. Cal. Aug. 1, 2014).
Friends then filed this suit in September 2014, alleging
that the permit violated the National Environmental Policy
Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Migratory
Bird Treaty Act (“MBTA” or the “Act”), 16 U.S.C. § 703 et
seq. In support of the latter claim, Friends argued that, under
the MBTA, “when the [Service] permits take for scientific
purposes, the action must be intended to advance the
conservation of the very species being taken.” The district
court disagreed and granted the Service’s motion for
summary judgment on both the NEPA and MBTA claims.
In explaining that ruling, the court concluded that “nothing”
in the MBTA or the international conventions it implements
limits scientific purposes to the species taken.
8 FRIENDS OF ANIMALS V. USFWS
Friends timely appealed. 2 Here, they press only the
MBTA claim. 3
II
Friends’ core argument before us is that the permit was
unlawful because, they say, under the MBTA, when the
Service “permits take for scientific purposes, the action must
be intended to advance the conservation or scientific
understanding of the very species being taken.” For concise
reference, we will refer to this as the “same-species theory,”
and Friends’ appeal rises or falls on whether such theory is,
in fact, compelled by the MBTA and the underlying
international conventions on migratory birds that it
implements.
2
We have jurisdiction under 28 U.S.C. § 1291 to review the final
decision of the district court. The government does not contest standing,
but we have “an independent duty” under Article III “to assure that
standing exists.” Washington Envtl. Council v. Bellon, 732 F.3d 1131,
1139 (9th Cir. 2013). We are satisfied that Friends have demonstrated
the injury-in-fact element of standing through declarations of two
members who meet the standard for environmental cases in showing that
they have an “aesthetic or recreational interest in a particular place[] or
animal . . . that . . . is impaired by [the Service’s] conduct.” Save Our
Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1119 (9th Cir. 2005) (internal
quotation marks omitted).
3
“We review de novo the district court’s grant of summary
judgment.” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d
846, 858 (9th Cir. 2005). Where, as here, the agency’s action is governed
by the Administrative Procedure Act, we only set aside its “actions,
findings, or conclusions if they are ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” Id. (quoting
5 U.S.C. § 706(2)(A)).
FRIENDS OF ANIMALS V. USFWS 9
A
“As always, we begin with the text of the statute.”
Limtiaco v. Camacho, 549 U.S. 483, 488 (2007). The
MBTA makes it unlawful to take any migratory bird covered
by the Act “except as permitted by regulations made as”
provided in the Act. 16 U.S.C. § 703(a). “[T]he Secretary
of the Interior is authorized and directed . . . to determine
when . . . it is compatible with the terms of the conventions
to allow . . . taking . . . and to adopt suitable regulations
permitting and governing the same.” Id. § 704(a). Those
regulations are “[s]ubject to the provisions and in order to
carry out the purposes of the conventions.” Id.
The Secretary of the Interior has exercised the authority
delegated by the MBTA to promulgate regulations
governing the taking of migratory birds. Most relevant to
this case is 50 C.F.R. § 21.23, which governs scientific
collecting permits and under which the Service issued the
permit. Under such regulation, applications to take
migratory birds for scientific or educational purposes must
describe the species and number of birds to be taken, the
location of collection, the purpose of the research project,
and the institution to which specimens will ultimately be
donated. 50 C.F.R. § 21.23(b). In addition to being subject
to the general conditions applicable to all permits for taking
migratory birds, scientific permits require that “[a]ll
specimens taken . . . be donated and transferred to the
public[,] scientific, or educational institution designated in
the permit application.” Id. § 21.23(c)(1).
The MBTA thus imposes few substantive conditions
itself and delegates to the Secretary of the Interior broad
discretion to implement the Act, discretion the Secretary has
used to promulgate the regulation at issue that has no text
directly supporting Friends’ proposed same-species theory.
10 FRIENDS OF ANIMALS V. USFWS
Friends do not suggest that we will find specific language in
the Act itself or the implementing regulations that compel its
theory. 4
B
Instead, Friends argue that the underlying conventions
codify the same-species theory, which is then binding on the
Service through the MBTA’s “consistency” provision,
which stipulates that regulations under the Act must be
“[s]ubject to the provisions and in order to carry out the
purposes of the conventions.” 16 U.S.C. § 704(a). There are
four conventions referenced in the Act for the protection of
migratory birds, one each with Canada, Mexico, Japan, and
Russia (the “Conventions”). 5 Of the four, owls are protected
only under the Mexico Convention.
4
Friends do hint obliquely that the permitting decision was
inconsistent with the regulation on special purpose permits—permits for
purposes “outside the scope of the standard form permits”—that requires
applicants to make “a sufficient showing of benefit to the migratory bird
resource, important research reasons, reasons of human concern for
individual birds, or other compelling justification.” 50 C.F.R. § 21.27
(emphasis added). But Friends provide no argument for why the special
purpose regulation is relevant when the permit was issued under the
separate scientific collecting regulation. Even if the special purpose
regulation were relevant, its language is disjunctive so that a permit
could be issued either to “benefit . . . the migratory bird resource,
important research reasons, . . . or other compelling justifications.”
50 C.F.R. § 21.27 (emphasis added). It therefore fails to support the
same-species theory.
5
See Convention between the United States of America and the
United Kingdom of Great Britain and Ireland for the Protection of
Migratory Birds in the United States and Canada, U.S.-U.K., Aug. 16,
1916, 39 Stat. 1702, as amended by the Protocol of Dec. 5, 1995, S.
Treaty Doc. No. 104-28; Convention between the United States of
FRIENDS OF ANIMALS V. USFWS 11
Friends’ principal argument in favor of the same-species
theory is based on Article II of the Mexico Convention,
which provides that Mexico and the United States “agree to
establish laws, regulations and provisions” for, among other
things, “[t]he establishment of close seasons, which will
prohibit in certain periods of the year the taking of migratory
birds.” Mexico Convention, art. II. That provision provides
an exception to the close seasons for taking birds “when used
for scientific purposes, for propagation or for museums.”
Id., art. II(A). Friends contend that the language of the
exception requires that any taking for scientific purposes
must comport with the same-species theory.
1
Friends’ leading argument supporting that interpretation
is that the phrase “when used for scientific purposes” implies
a limitation comporting with the same-species theory. As
they put it, such language suggests a requirement “that a
taken migratory bird be used directly for a scientific purpose,
propagation or for museums.” They say that the experiment
at issue fails to satisfy that requirement because “the main
purpose of [it] is to ‘eliminate,’ not conserve, a protected
bird,” and “very few, if any, of the . . . barred owls killed will
America and the United Mexican States for the Protection of Migratory
Birds and Game Mammals, U.S.-Mex., Feb. 7, 1936, 50 Stat. 1311;
Convention between the Government of the United States of America
and the Government of Japan for the Protection of Migratory Birds and
Birds in Danger of Extinction, and Their Environment, U.S.-Japan, Mar.
4, 1972, 25 U.S.T. 3329; Convention between the United States of
America and the Union of Soviet Socialist Republics Concerning the
Conservation of Migratory Birds and their Environment, U.S.-U.S.S.R.,
Nov. 19, 1976, 29 U.S.T. 4647. We refer to these, respectively, as the
“Canada Convention,” “Mexico Convention,” “Japan Convention,” and
“Russia Convention.”
12 FRIENDS OF ANIMALS V. USFWS
be, themselves, used for a scientific purpose, propagation or
for museum[s].”
The Service responds that “all barred owls taken under
the permit will be used for scientific purposes” because
“[r]emoval to study effects on the surrounding environments
is use for a scientific purpose.” Moreover, the Service says,
the permit even satisfies Friends’ narrow definition of “use”
because the permit requires that “[a]ny specimens . . .
possessed after the expiration of [the] permit must be
transferred to [the Service] . . . or donated and transferred to
California Academy of Sciences Dept. of Ornithology and
Mammalogy.” Therefore, says the Service, “all barred owls
taken and retrieved” will “be donated to public educational
and research institutions, where their remains may be the
subject of additional scientific research.”
If the word “used” in the Convention does not support
Friends’ position, we need not resolve whether the incidental
donation of some of the taken barred owls to scientific
institutions would satisfy Friends’ proposed limitation. So,
we turn first to that threshold question of whether “used”
implies a same-species limitation at all.
a
We begin by noting that the proposed theory Friends
derive from the phrase “used for scientific purposes” is
distinct from their proposed same-species limitation
whereby scientific-collection permits “must be intended to
advance the conservation or scientific understanding of the
very species being taken.” A taken specimen could itself be
used directly for a scientific purpose that does not benefit its
species’ conservation or understanding. As the Service
points out, in the past it has issued permits to take barn owls
for research on human hearing and hummingbirds for
FRIENDS OF ANIMALS V. USFWS 13
research on flight aerodynamics. In those examples, the
taken birds would themselves be used for scientific
purposes. The experiments would therefore satisfy the
specimen-specific theory Friends suggest based on the
language in Article II(A) of the Mexico Convention. But the
experiments would not satisfy a version of the same-species
theory requiring that the taking also benefit the species’
conservation, because they have nothing to do with
conservation. So, the principal textual argument Friends
make already fails to support the limitation they initially
proposed. Because the specimen-specific restriction derived
from Article II(A) could also invalidate the Service’s
actions, though, we consider it on its own terms.
b
“When a word is not defined by statute, we normally
construe it in accord with its ordinary or natural meaning.”
Smith v. United States, 508 U.S. 223, 228 (1993). Applying
that principle, the Supreme Court has looked to dictionaries
in other contexts to determine what the word “use” means:
Webster’s defines “to use” as “[t]o convert to
one’s service” or “to employ.” Black’s Law
Dictionary contains a similar definition: “[t]o
make use of; to convert to one’s service; to
employ; to avail oneself of; to utilize; to carry
out a purpose or action by means of.” Indeed,
over 100 years ago we gave the word “use”
the same gloss, indicating that it means “to
employ” or “to derive service from.”
Id. at 228–29 (alterations in original) (internal quotation
marks and citations omitted). Applying those definitions,
the Mexico Convention therefore allows the taking of owls
during close seasons when those owls are employed for a
14 FRIENDS OF ANIMALS V. USFWS
scientific purpose or when a scientific purpose is carried out
by means of those owls.
There is some common-sense appeal to Friends’
interpretation. It would be odd to say colloquially that a bird
was “employed for a scientific purpose” when the purpose
of taking the bird was to procure its demise and not
affirmatively to experiment with the bird or its cadaver. If
the Convention drafters wanted clearly to adopt the Service’s
interpretation, language such as “taken for a scientific
purpose” would have been a better fit. That being said, if we
apply the broader dictionary definitions of “use,” then to
“use for scientific purposes” could mean “to employ” the
bird, or “to carry out” a scientific purpose “by means of” the
bird, or “to derive service” from the bird for a scientific
purpose. Removing a bird to procure its demise likely fits
within the letter of those definitions, even if the bird (or its
cadaver) is not itself the subject of scientific experiment.
The question is close enough, though, that if we had to
interpret the meaning of Article II(A) in isolation, the
meaning of “used” might be ambiguous.
c
The surrounding text and structure of the Convention,
however, decisively favor the Service’s broader
interpretation of the word “used.” Interpretation of legal text
“is a holistic endeavor,” and a “provision that may seem
ambiguous in isolation is often clarified by the remainder of
the . . . scheme,” here “because only one of the permissible
meanings produces a substantive effect that is compatible”
with the remainder of the treaty. United Sav. Ass’n of Tex.
v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371
(1988).
FRIENDS OF ANIMALS V. USFWS 15
The text of Article II begins with: “The high contracting
parties agree to establish laws, regulations and provisions to
satisfy the need set forth in the preceding Article.” Mexico
Convention, art. II (emphasis added). That “preceding
Article” is Article I, which sets out the purposes of the
Mexico Convention and envisions a broad use of protected
birds. Specifically, it provides:
In order that the species may not be
exterminated, the high contracting parties
declare that it is right and proper to protect
birds denominated as migratory . . . by means
of adequate methods which will permit, in so
far as the respective high contracting parties
may see fit, the utilization of said birds
rationally for purposes of sport, food,
commerce and industry.
Id., art. I.
The structure of the Convention is thus to define its scope
and aims in Article I and to articulate certain measures the
parties must implement to achieve those aims in Article II.
Its paramount goal is that migratory bird species “may not
be exterminated.” Id. It gives broad latitude to the parties
to permit use of birds as they “may see fit,” and it envisions
the “utilization of the birds” for a broad range of purposes—
sport, food, commerce, and industry—which generally serve
no benefit to the birds themselves. Id. The specifically
sanctioned uses for the broad and undefined fields of
“commerce and industry” also suggest that the Convention
envisions that birds might sometimes be taken for purposes
not related to using the taken specimens themselves.
Where a provision indicates it is intended to satisfy the
need of preventing the extermination of protected species, it
16 FRIENDS OF ANIMALS V. USFWS
makes little sense to interpret a vague word in such provision
to block a party from engaging in a bona fide scientific
experiment to accomplish that very purpose. Under Friends’
interpretation, the Service could seemingly take barred owls
to display them in museums but could not take them to
prevent the extermination of spotted owls, even though the
effect on the barred owl population would be minimal. That
bizarre result runs entirely contrary to the principles
articulated in Article I, which the Convention expressly says
are to be implemented by the provisions in Article II.
At oral argument, Friends objected to reading Article II’s
provisions in light of Article I on the ground that the two
Articles have distinct roles: Article I explains what uses are
generally permitted whereas Article II sets out specific uses
that are not. We are cognizant of the “commonplace” rule
of statutory construction “that the specific governs the
general,” and we would not eviscerate a clear, specific
prohibition based on general purposive language. See
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639, 645 (2012) (internal quotation marks
omitted). But that is not the situation before us. Instead, we
must interpret vague language in Article II, which itself
expressly tells us that its terms are intended to implement
Article I’s goals. In such case, the proper way to read
indefinite terms in Article II is congruent with the broad
purposes of Article I.
We therefore conclude that the “used for scientific
purposes” exception in Article II(A) of the Mexico
Convention includes taking birds to study whether their
absence benefits another protected bird species. We need
not decide just how far the exception extends because, read
in the full context of Articles I and II, it clearly encompasses
a controlled scientific study to save a threatened species
FRIENDS OF ANIMALS V. USFWS 17
covered by the Convention when that study will have only a
negligible effect on the overall population of the taken
species. 6
2
At oral argument, Friends suggested a secondary basis to
support their reading of the Mexico Convention to imply a
same-species limitation: that the canon of noscitur a sociis
compels such reading. There, “words grouped in a list
should be given related meaning.” Third Nat’l Bank in
Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977). More
generally, when words “are associated in a context
suggesting that the words have something in common, they
should be assigned a permissible meaning that makes them
similar.” Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 195 (2012). Based on such
principle of textual interpretation, Friends suggest that in
Article II(A)’s exception for taking birds when “used for
scientific purposes, for propagation or for museums,” the
phrase “for scientific purposes” should be read to be limited
by the other elements in that series, namely “for
propagation” and “for museums.” Friends argue that if one
is taking a bird for propagation or for museums, the bird
itself is being used for the propagative or museum purpose,
6
The Service also obliquely argues that the close-season provision
does not even apply to non-game birds like owls. At least one of our
sister circuits has adopted that view. See Fund for Animals v.
Kempthorne, 538 F.3d 124, 134 (2d Cir. 2008) (“We . . . defer to the
[Service’s] reasonable view that the [Mexico] Convention requires a
close season only for the category of game birds.”). Because we
conclude that the scientific collection permit at issue is consistent with
the Mexico Convention’s close-season provision, we need not determine
whether such provision applies to non-game birds like owls.
18 FRIENDS OF ANIMALS V. USFWS
so “scientific purposes” should be restricted in the same
manner. 7
We find such implied limitation unpersuasive. As a
threshold matter, it is not clear that the noscitur canon even
applies to this list. “For the associated-words canon to apply,
the terms must be conjoined in such a way as to indicate that
they have some quality in common.” Scalia & Garner,
supra, at 196. The terms “scientific purposes,”
“propagation,” and “museums” are sufficiently distinct that
there is no obvious common denominator among them. It is
just as plausible that each was intended to be read distinctly
as a separate exception as that they were intended to be read
in concert as sharing certain elements.
Even if the noscitur canon did apply, however, we do not
believe it supports Friends’ same-species theory. Perhaps
the most natural reading of taking a bird “for museums” is to
display or study that particular specimen itself, but
“propagation” need not share that limitation. Of course, one
way to use a bird for propagation is to take that bird and
breed it, but it is just as plausible to promote propagation by
taking a bird to clear the way for others to propagate. In fact,
that is exactly what the Service is aiming to do in its study:
take barred owls in order to assist the propagation of
northern spotted owls. Especially when read against the
backdrop of Article I’s articulated aims to assure that
protected “species may not be exterminated” and to promote
a broad set of uses, we see little justification for reading
7
We note that this argument again supports only the specimen-
specific version of the same-species theory, rather than Friends’ original
proposed same-species limitation that a taking must support the species’
conservation.
FRIENDS OF ANIMALS V. USFWS 19
“propagation” as narrowly as do Friends and then further to
extend that narrow reading to limit “scientific purposes.”
3
Friends’ final argument in favor of their same-species
theory based on the Mexico Convention is that the Service’s
loose definition of scientific purposes invites a slippery
slope. Friends argue that under the Service’s interpretation,
“the law authorizes the killing of any migratory bird so long
as the killing is for a scientific purpose, no matter how
unrelated to the conservation of the species being killed. . . .
Carried to its extreme, this position would allow for an entire
migratory bird species . . . to be exterminated so long as
there is a scientific basis to do so, whether it is related to
another animal, or even for human economic gain.”
The Service disputes that any such slippery slope exists.
In this specific case, it points out that it “found that the
experiment . . . was a bona fide scientific study,” that it will
“minimiz[e] the number of barred owls to be removed,” and
that the study will “have a negligible impact on the barred
owl” population. In more extreme cases such as the
hypothetical raised by Friends, the Service contends that
“scrutinizing the proposed take’s effect on the taken species
before issuing a scientific-collecting permit is a far more
direct way of protecting migratory-bird populations than
limiting what study area a permit may advance.”
We are persuaded by the Service’s suggested backstop
against Friends’ parade of horribles. Reading Articles I and
II of the Mexico Convention in concert, they require that the
parties “establish laws, regulations and provisions” to assure
that covered “species may not be exterminated.” In the event
that the Service were to propose an experiment to
exterminate a species protected by the Mexico Convention,
20 FRIENDS OF ANIMALS V. USFWS
Friends could point to clear text in the Convention to
challenge that experiment, in addition to relying on other
restrictions imposed by federal laws such as NEPA and the
Administrative Procedure Act, 5 U.S.C. § 500 et seq. The
Convention’s conservation purposes may thus be achieved
without reading into it a same-species limitation that is
unsupported by its text.
C
Friends also point to the Canada, Japan, and Russia
Conventions to argue that they support the same-species
theory. Friends provide no argument for why those
Conventions—which cover neither barred nor spotted
owls—are applicable. Cf. Fund for Animals v. Norton,
365 F. Supp. 2d 394, 411 (S.D.N.Y. 2005), (“[A]gency
action should be evaluated for compliance only as to
conventions that explicitly govern the disputed bird species,
not for compliance with all four conventions.”), aff’d sub
nom. Fund for Animals v. Kempthorne, 538 F.3d 124 (2d Cir.
2008). In any event, even if those Conventions did apply in
this case, we see nothing in them requiring a same-species
limitation when taking migratory birds for scientific
purposes.
The Canada Convention provides that “the taking of
migratory birds may be allowed at any time of the year for
scientific, educational, propagative, or other specific
purposes consistent with the conservation principles of this
Convention.” Canada Convention, art. II, ¶ 3. Those
conservation principles are defined as the following: “[t]o
manage migratory birds internationally,” “[t]o ensure a
variety of sustainable uses,” “[t]o sustain healthy migratory
bird populations for harvesting needs,” “[t]o provide for and
protect habitat necessary for the conservation of migratory
birds,” and “[t]o restore depleted populations of migratory
FRIENDS OF ANIMALS V. USFWS 21
birds.” Id., art. II. The Japan and Russia Conventions each
have similar language, although the principles in those
Conventions are not expressly defined. See Japan
Convention, art. III, ¶ 1; Russia Convention, art. II, ¶ 1.
No language in the defined purposes of the Canada
Convention—or in the preambulatory text describing the
objectives of the Japan and Russia Conventions—prevents
taking a non-threatened protected species for a scientific
experiment to protect a different threatened protected
species. To the contrary, the defined purpose to “restore
depleted populations of migratory birds” supports the
Service’s objectives in issuing the challenged permit. Those
Conventions, then, do not salvage Friends’ argument in
favor of a same-species limitation.
III
The Service contends that if there were ambiguity in the
MBTA or underlying Conventions, we would be required to
defer to its interpretation under one of several doctrines.
Because the plain text of the MBTA and the Conventions do
not compel a same-species limitation, however, we need not
consider the question of deference to the agency’s
interpretation. 8 Cf. Chevron U.S.A. Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 843 n.9 (1984) (“The judiciary
is the final authority on issues of statutory construction and
must reject administrative constructions which are contrary
to clear congressional intent. . . . If a court, employing
traditional tools of statutory construction, ascertains that
8
We do not opine that the Department of the Interior is foreclosed
from imposing on itself a same-species limitation under the broad
discretion given it by the MBTA and the underlying Conventions; only
that nothing in those texts requires that it do so.
22 FRIENDS OF ANIMALS V. USFWS
Congress had an intention on the precise question at issue,
that intention is the law and must be given effect.”); County
of Amador v. United States Dep’t of the Interior, 872 F.3d
1012, 1025 (9th Cir. 2017) (“We need not decide whether
Chevron deference is owed to the agency because . . . we
reach the same conclusion as the agency even without it.”);
Scalia & Garner, supra, at 31 (“A fundamental rule of textual
interpretation is that neither a word nor a sentence may be
given a meaning that it cannot bear.”).
IV
For the foregoing reasons, the judgment of the district
court is AFFIRMED.