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Monday, December 11, 2023 | Back issues
Courthouse News Service Courthouse News Service

Owl Deaths Near Airport Don’t Trouble 2nd Circuit

(CN) - Any kind of migratory bird near JFK Airport in New York City, even snowy owls, may be shot down to protect human lives, the Second Circuit ruled Tuesday.

Friends of Animals sued federal environmental regulators just before Christmas 2013, a few weeks after, it said, the world "woke to learn that over the weekend government agents had shot and killed three snowy owls ... considered a cherished find by bird watchers."

The defendant agencies carried out the shootings in coordination with the Port Authority of New York and New Jersey under the Gull Hazard/Bird Hazard Reduction Program, saying one of the birds could interfere with planes landing and taking off at John F. Kennedy International Airport.

The danger of bird strikes became a household topic for New Yorkers in early 2009 when US Airways pilot Chesley Sullenberger took on hero status for landing a jet in the Hudson River when its engine failed after being hit by a bird.

Friends of Animals said the program has resulted in the "deaths of tens of thousands of birds at or near" the airport since 1994.

It sued Agriculture Department William Clay, the Animal and Plant Health Inspection Service, and the U.S. Fish and Wildlife Service in Brooklyn, but U.S. District Judge John Gleeson dismissed the case in 2014.

Gleeson said he was "not persuaded" the defendants did not consider a "range of reasonable alternatives."

While the National Environmental Policy Act requires agencies to explore all alternatives, that obligation remains at the agency's discretion, he added.

The Second Circuit affirmed the ruling Tuesday.

"We conclude that § 21.41 does not place Port Authority officials in the untenable position of having to choose between violating federal law and deliberately ignoring serious threats to human safety," said U.S. Circuit Judge José Cabranes, writing for the three-judge panel. "Rather, the regulation plainly authorizes FWS to issue depredation permits that contain non-species-specific emergency-take provisions."

The panel said Friends of the Animals misread the Migratory Bird Treaty Act as requiring the agency to specifically list the species of bird that may be killed on the permit's face, when this provision does not apply to emergency situations.

"It is clear that when the Port Authority takes a migratory bird 'in [an] emergency situation[ ]' because the bird 'pos[es] a direct threat to human safety,' the taking complies with § 21.41(c)(1)'s command that '[p]ermittees may not kill migratory birds unless specifically authorized on the permit,'" Cabranes said.

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