Judge Considers FoA’s Lawsuit Over Snowy Owl Shootings 

By Nicole Rivard

On Friday, Aug. 1, lawyers for Friends of Animals (FoA) made their second appearance in Federal Court on behalf of snowy owls and numerous other bird species that are wrongfully and illegally being shot by wildlife agencies at and near John. F. Kennedy International Airport in New York. The judge allowed FoA to make its arguments in full and seemed skeptical about the government’s assertion that the record shows FoA doesn’t have standing.

Following the shooting of snowy owls at JFK back in December under the Gull Hazard/Bird Hazard Reduction Program alleged to protect aircraft departing and arriving at JFK from bird strikes, FoA filed a lawsuit in December against the Animal and Plant Health Inspection Service and the U.S. Fish and Wildlife Service (USFWS) for violating the National Environmental Policy Act (NEPA) and the Migratory Bird Treaty Act (MBTA).

Michael Harris, legal director of FoA’s Colorado-based Wildlife Law Program, presented arguments to U.S. District Court Judge John Gleeson about why the lawsuit, which seeks to change policies of the federal agencies that oversee bird removal at JFK, should go forward. Harris explained that under NEPA the federal agencies authorizing the program and those involved in the shootings were required to disclose the scope and impacts of the bird-reduction program it oversees and to discuss all the reasonable alternatives to lethal options, but they failed to do so. 

Harris said that FoA is representing bird-watchers around Kennedy Airport and explained why they have been injured by the federal agencies’ decisions.

“We are advocating for a more species by species approach. This is something they have taken for some species, such as ospreys, but not for a majority of the species,” Harris said. 

“For most species there is just a blanket assertion that they will—where practical and effective—use non-lethal controls. But what does that mean? Are they just telling us, ‘We know what we are doing, trust us.’ Because if that’s the case NEPA’s not a ‘trust us’ statute. It’s a disclosure statute. And we aren’t having the information about when they can use nonlethal controls presented in the Environmental Impact Statement (EIS). And to be frank, when you look at what happens on the ground at the airport, they are killing hundreds of birds every year that they don’t consider to be priority species in the EIS. So there’s a mismatch between the documentation for the program and the on-the-ground activity for the program. …    It’s just a shoot-first mentality because the EIS sort of says do that—unless it’s practical and effective—and we aren’t going to tell you what practical and effective means.”

Harris went on to say that the agencies are claiming the lawsuit is putting an unattainable goal on them –having an EIS that documents the specifics for each species. 

But Harris argued: “They have been out there doing this work since at least 1994; this isn’t something that we are asking them have done overnight. They want this flexibility and operational control, that’s fine. But that shouldn’t trump transparency, so as new information is made available, new species are looked at, there are new information about controls, they should be updating that information either in a supplemental EIS or Environmental Assessment or some other type of public document that would allow people to keep up with what’s going on there.” 

Assistant United States Attorney Margaret Kolbe argued for dismissal of the case, saying that the Port Authority is responsible for the Gull Hazard Reduction Program and that Wildlife Services is simply a contractor at the airport and can’t address the problems the suit seeks to fix.

Harris said that Port Authority is not included in the suit because FoA brought it under the Administrative Procedure Act and only federal agencies can be sued under that act. He countered Kolbe’s arguments and explained why the USFWS is responsible for addressing the problems. 

“Even if the Port Authority or some other contractor were going to step into the shoes of Wildlife Services, the Supreme Court in Lujan v. Defenders of Wildlife said that if there is federal approval still necessary, through that federal approval process the injury to the plaintiff would be redressed,” Harris said. “Here there is no dispute that the Port Authority or any other private entity could not take migratory birds without a MBTA permit. USFWS and the Dept. of Agriculture work together on getting those permits issued. They state as much on footnote five in their reply brief.” 

Harris pointed out that FoA is not trying to undermine any agreements between the Wildlife Services and the Port Authority or the government’s participation at JFK. The lawsuit is meant, with NEPA and MBTA, to help make sure that all of these agreements are transparent—transparent to the public and transparent to the people carrying out the work. 

“Transparency begets good decision making,” Harris said. “We even see after the revelation about the snowy owls in December that USFWS all of a sudden became more transparent with respect to snowy owls at least.”

“After the filing of the suit in December, USFWS announced it intended to redress the federal permit conditions that authorized the killing of snowy owls. On June 11, 2014, USFWS issued a new permit that, according to the agency, clarifies the ‘stated preference for non-lethal methods be the primary means of management.’”  

Judge Gleeson is expected to issue a decision in the coming weeks about whether the lawsuit can proceed.