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Problem
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UNITED STATES COURT OF APPEALS FOR
THE TWELFTH CIRCUIT The United States and Blackacre Forest Products, Inc. (Blackacre) have appealed the decision of the United States District Court for the District of New Union denying their motions to dismiss the action brought against them by Citizens to Save the Birds, Inc. (CSB) for judicial review of the grant of logging rights by the United States Forest Service to Blackacre. Each party is instructed to brief the following questions: (1) Does the fact that bird deaths will occur only if Blackacre logs during nesting season, an occurrence which is not yet known, make judicial review unripe or eliminate standing for CSB because it suffers no present injury? The United States and Blackacre answer in the affirmative, CSB answers in the negative. (2) Is the Migratory Bird Treaty Act, 16 U.S.C. § 703(a) (MBTA),a strict liability criminal offense? CSB and the United States answer in the affirmative, and Blackacre answers in the negative. (3) Does the MBTA prohibit the killing of migratory birds by clearcutting forests during bird nesting season? CSB answers in the affirmative and Blackacre answers in the negative. The United States answers that the MBTA prohibits killing birds in that manner, except when the birds are killed in accordance with actions specifically allowed in a forest management plan and/or logging sale. (4) Is the MBTA "law" with which agency actions under National Forest Management Act, 16 U.S.C. §§ 1600 et seq.(NFMA) must be in accord for purposes of judicial review under the Administrative Procedure Act, 5 U.S.C. § 706 (APA)? CSB answers in the affirmative, and the United States and Blackacre answer in the negative. Parties are limited in their briefs to the above issues, but are not limited to arguments for their positions raised below in the district court. For purposes of briefing and arguing, legal authorities may be cited that date on or before September 1, 1997. More recent legal authorities may not be cited or referenced.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW UNION and BLACKACRE FOREST PRODUCTS, INC., Memorandum Order This matter comes before the Court on Motions to Dismiss filed by the defendants. The Motions are denied for the reasons set forth below. In May of 1997 the United States Forest Service (the Forest Service), within the Department of Agriculture, authorized a timber sale to Blackacre Forest Products, Inc. (Blackacre), pursuant to the National Forest Management Act, 16 U.S.C. §§ 1600 et seq. (NFMA), permitting Blackacre to clearcut 500 acres, known as the "Big Tree Tract," in the New Union National Forest. The Big Tree Tract is part of an area of old growth forest, one of the few remaining in the state of New Union. It is widely used for outdoor recreation and study, but is also a valuable timber resource. To balance these diverse interests, the Forest Service developed a land and natural resource management plan (the Plan) for the New Union National Forest, pursuant to NFMA § 1604 and 36 CFR Part 219. The Plan designated some parts of the old growth forest, including the Big Tree Tract, for logging and other parts for preservation. The Forest Service followed its normal procedures both for the development of the Plan and for the timber sale, which included preparation of an Environmental Impact Statement (EIS) as required under the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (NEPA). Citizens to Save the Birds, Inc.(CSB), is a not-for-profit corporation organized under the laws of the State of New Union. Its purpose is to protect the avian population resident in and migrating through the State of New Union. CBS alleges that its members observe birds and enjoy the outdoors in the New Union National Forest in general and in the Big Tree Tract in particular. CSB alleges that its members' use of the Big Tree Tract would be adversely affected if Blackwater were allowed to clearcut the Big Tree Tract. CSB opposed the timber sale at all stages of the Forest Service's development of the Plan and during the sale on several grounds, but most particularly on grounds that clearcutting will result in the direct and indirect deaths of many migratory birds that roost and nest in the trees designated for cutting. Direct deaths would result from cutting trees which contain nests with eggs or chicks. Indirect deaths would result from the destruction of habitat caused by the loss of mature forest. CSB is supported by the Forest Service's own EIS, which states that "...If cutting occurs during spring or summer months, it will undoubtedly result in the loss of nests with their eggs or chicks. Based on a baseline survey, this could include two saw-whet owl nests, ten downy and hairy woodpecker nests, fifteen purple finch nests, fifteen nests of various warblers..," for a total of over a hundred nests containing from one to three chicks each. Neither the Plan nor the timber sale restrict the season of the year during which clearcutting is allowed. Blackacre stated at the hearing on this Motion that it will harvest timber during bird nesting season, as well as during other times of the year because it believes that birds killed in the course of harvesting timber in accordance with the Plan and timber sale are not killed in violation of the MBTA. The EIS also acknowledges that clearcutting will result in habitat destruction, which may contribute to long term bird population depletion, but does not quantify this impact. CSB seeks judicial review under NFMA of the Forest Service's action in making the timber sale, using the standard for judicial review set forth in the Administrative Procedure Act, 5 U.S.C. § 706 (APA). CSB challenges the timber sale on a number of legal grounds, but only one is relevant to the present Motion. CSB claims that the United States is foreclosed from any timber sale that authorizes logging which will kill migratory birds in violation of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq. (MBTA). The MBTA makes it a misdemeanor offense to "kill...a migratory bird," except in compliance with applicable regulations. CSB argues that the MBTA thus creates a strict criminal liability offense, which forbids anyone, including the Forest Service and Blackacre, from killing migratory birds in any manner. There is no doubt the birds, which the Forest Service admits will be killed, are migratory birds, see 50 CFR § 10.13. CSB argues that because the Forest Service acknowledges that the timber sale will result in a violation of the MBTA, it was "not in accordance with law" for the Forest Service to enter into the timber sale under the NFMA. "Not in accordance with the law" is the standard of judicial review for the Forest Service’s actions under the APA, 5 U.S.C. § 706. The United States agrees with CSB that the MBTA is a strict liability offense, but moves to dismiss on the basis that the MBTA is not law that governs the timber sale and that the issue is not properly before the court in any event. As to the latter issue, the United States argues that the issue is not ripe and that the plaintiff lacks standing to raise the issue at this time. It argues both of these points on the basis that the Forest Service has killed no migratory birds, the Forest Service will kill no migratory birds, Blackacre has killed no migratory birds, and there is no proof that Blackacre will kill birds in the future. Bird deaths may occur as a result of logging only if Blackacre actually logs the Big Tree Tract and logs it during nesting season. There is no proof that Blackacre is about to log the Tract and no proof that if it ever logs the Tract that it will do so during the nesting season. Thus there is no present legal dispute before the court, CSB's members are suffering no present injury, there may never be a legal dispute, and CSB's members may never suffer an injury. Under these circumstances, the dispute is not ripe and CSB has no standing to raise it because it suffers no injury. See, Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). The United States also argues that the MBTA has no relevance to judicial review of the Forest Service's actions under NFMA. This is a several pronged argument. First, the timber sale is governed by NFMA and NFMA no where forbids the sale of timber or any other forest related activity because it will result in the death of migratory birds. Indeed, many of the activities authorized and contemplated by NFMA will result in the death of migratory birds, a result that must have been contemplated and approved of by Congress when it enacted NFMA in 1976, long after the enactment in 1918 of the MBTA. The United States argues that NFMA supersedes the MBTA in this regard. Second, if the MBTA is relevant, the Forest Service has not violated it, for the Forest Service's actions have killed no birds. Even if the Forest Service had killed birds, the only remedy provided by the MBTA is a criminal remedy. The United States has unfettered discretion whether to prosecute violations of the MBTA. The United States does not believe the Forest Service could violate the MBTA by making timber sales and, in any event, chooses not to prosecute the Forest Service or its employees. If Blackacre subsequently kills migratory birds while clearcutting, the United States will decide whether Blackacre's actions violate the MBTA and, if so, whether the United States will prosecute those violations. Blackacre agrees with the United States that the MBTA is a criminal statute having no relevance to civil judicial review of agency action under the NFMA concerning a timber sale. But, disagreeing with the United States, Blackacre argues that the MBTA is not a strict liability statute that can be violated either by the Forest Service in adopting a Plan or entering into a timber sale or by a forest products company in cutting timber pursuant to a Plan and timber sale. It argues that the MBTA was intended as a statute regulating the hunting of birds, not the cutting of timber or other non-avian related economic activity that may incidently have the affect of killing birds. According to Blackacre, the MBTA is not a strict liability criminal statute in that it does not apply to a "wide range of human activity [including logging] that may incidentally and unintentionally cause the death of migratory birds," Mahler v. U.S. Forest Service, 927 F. Supp. 1559, 1576 (S.D. Ind. 1996). Blackacre agrees with the United States on both the ripeness and standing issues. As to these issues CSB, argues that both the Plan and the sale are ripe for review because the Forest Service has taken final action on them and will take no further action giving rise to review at a later time. CSB aruges it is injured by the government’s abdication of its responsibility to protect migratory birds, an event that has taken place. The issue raised in the Motion is ripe for decision. The Forest Service has taken its final action. The Forest Service will take no more action in regard to the clearcutting. Neither NMFA nor its implementing regulations require notice to or action by the Forest Service before Blackacre begins to harvest timber. The Forest Service and Blackacre acknowledged in the hearing on this motion that neither of them contemplated notice to or further action by the Forest Service before Blackacre begins to harvest timber. Bird deaths may await the decision of Blackacre on whether and when to clearcut. But CSB seeks judicial review of the Forest Service's action, not Blackacre’s actions, and the Forest Service’s action is completed. Subsequent action taken by Blackacre do not give rise to judicial review of the Forest Service's actions. The dispute is real, it is clothed with real facts, it is between parties with real stakes in its outcome, and CSB's members are injured by the Forest Service's actions, see, Sierra Club v. Robertson, 28 F.3d 753 (8th Cir. 1994). There is no doubt that the MBTA's misdemeanor offense is a strict liability offense. Virtually every court considering the issue has so held, see, United States v. Boynton, 63 F.3d 337 (4th Cir. 1995); United States v. Van Fossen, 899 F.2d 636 (7th Cir. 1990); and United States v. Janvier Angueira, 951 F.2d 12 (1st Cir. 1991); but see, United States v. Sylvester, 848 F.2d 520 (5th Cir. 1988). The recent amendment of the MBTA adding a mens rea component to its felony offense, 16 USC § 707(b), suggests the continuing absence of a mens rea component in its original misdemeanor offense, § 707(a), is intentional, Pub. L. 99-645, Title V, §100 Stat. 3590 (1986). Indeed, congressional history bears this out, S. Rep. No. 99-445, 16. Answering Blackacre's argument that the MBTA applies only to bird deaths resulting from hunting, no such language appears in the statute and courts have had no trouble applying the statute in a variety of situations other than hunting, see, U.S. v. Van Fossen, supra; and United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978). The only real question, then, is whether the MBTA is "law" applicable to judicial review under the APA of logging decisions made by the Forest Service under NFMA. The APA instructs courts engaged in judicial review of federal actions to set aside actions which are "not in accordance with the law." The United States appears to be arguing that the MBTA is law which the United States may enforce criminally against others, but which does not apply to it. This highhanded interpretation of the law puts even Blackacre in an untenable position. The MBTA is law within the ordinary meaning of that term and there is no indication that the APA's use of the term is anything other than its ordinary meaning. It therefore applies to judicial review of Forest Service actions under the NFMA. And it forbids bird deaths, whether intentional or not, from any action unauthorized by regulations or permits issued under the MBTA. The MBTA forbids the killing of migratory birds by the United States, its employees, and those to whom it makes timber sales. Granted, the MBTA does not mention these persons as among those to whom the prohibition applies. But it does not exclude them either. Why would Congress enact a statute placing the United States and its employees above the law? The Department of Interior, which administers the MBTA, evidently considers that it and its employees are covered by the law, for it has promulgated regulations exempting its personnel from the requirement to get MBTA permits for taking migratory birds under some circumstances, 50 CFR § 21.12(a). Such regulations, of course, would be unnecessary if the MBTA did not apply to bird deaths caused by the United States and its employees. The fact that the MBTA provides only criminal sanctions does not preclude its application in a civil context, Wyndotte Transportation Co. v. United States, 389 U.S. 191 (1967); United States v. Republic Steel Corp., 362 U.S. 482 (1960). I am mindful that other courts have reached different decisions on this issue, see Sierra Club v. Martin, 110 F.3d 1551 (11th Cir. 1997); Newton County Wildlife Assn. v. United States Forest Service, 113 F.3d 110 (8th Cir. 1997); and Mahler v. United States Forest Service, supra. But these opinions reach their conclusions by results oriented rather than principled reasoning. They see great mischief if the MBTA is applied to halt government actions which will result in bird deaths. Such mischief may occur, but if it is mischief the legislature did not intend, it is up to the legislature, not the courts, to amend the statute to remedy the mischief. Indeed, it ill behooves the government to complain that it is inconvenienced by application of the MBTA. The government may promulgate regulations under the MBTA authorizing its employees to carry out the very type of activity which it has conducted here, as it has promulgated to authorize the to carry out activities under other circumstances. Accordingly, the Motion is dismissed. /s/
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