The Fund for Animals v. Kempthorne

The 1936 Mexico Convention (the treaty) was a treaty between the United States and Mexico that provided protections for migratory birds. Pursuant to the treaty, the parties agreed to establish close seasons for migratory birds, to require permits, and to limit hunting of migratory birds to four months during the year, with certain exceptions for private game farms. The Migratory Bird Treaty Act (MBTA) implemented the treaty as federal law and prohibited the hunting of migratory birds except as permitted by regulation. The MBTA delegated authority to the secretary of the interior (the secretary) (defendant) to promulgate regulations related to the taking of migratory birds in accordance with the treaty’s requirements. The secretary delegated this authority to the Fish and Wildlife Service (FWS). After a period of decline, cormorant populations rebounded, and the birds were known to prey on fish to the detriment of certain industries. The FWS issued a depredation order that permitted limited taking of cormorants to prevent depredations on public resources and that provided for the reporting and monitoring of cormorant populations to avoid threatening the species. The depredation order was not subject to a close season. Although it was not stated in the treaty, the parties agreed that cormorants were nongame birds. The Fund for Animals (the fund) (plaintiff) sued and filed a motion for summary judgment. The fund argued that if the treaty intended close-season restrictions only for game birds, it would have stated as such rather than referring generally to migratory birds. The fund cited language elsewhere in the treaty that differentiated between game and nongame birds as proof the general language used was deliberate as to close seasons. The fund’s motion was denied, and the suit was dismissed. The fund appealed the dismissal.