The opinion of the court was delivered by: GORDON THOMPSON, JR.
Plaintiffs are partnerships, corporations and individuals who maintain wetland habitats for waterfowl on duck hunting clubs. They bring this suit to enjoin the United States Fish and Wildlife Service (FWS) from enforcing the federal anti-baiting regulation promulgated under the Migratory Bird Treaty Act (MBTA) against any plaintiffs who have complied with the regulations of the California Fish and Game Commission pertaining to the feeding of migratory waterfowl.
The pertinent section of the Federal anti-baiting regulation states that no person shall take migratory game birds:
(i) By the aid of baiting, or on or over any baited area. As used in this paragraph, "baiting" shall mean placing, exposing, depositing, distributing, or scattering of shelled, shucked, or unshucked corn, wheat or other grain, salt, or other feed so as to constitute for such birds a lure, attraction or enticement to, on, or over any areas where hunters are attempting to take them; and "baited area" means any area where shelled, shucked, or unshucked corn, wheat or other grain, salt, or other feed whatsoever capable of luring, attracting, or enticing such birds is directly or indirectly placed, exposed, deposited, distributed, or scattered; and such area shall remain a baited area for 10 days following complete removal of all such corn, wheat or other grain, salt or other feed.
50 C.F.R. § 20.21 (i), Exhibit 18.
There is a long standing disagreement over waterfowl baiting between the FWS, these plaintiffs and others similarly interested. At the center of this conflict is a regulation adopted by the state of California in 1953. This regulation was adopted to prevent crop depredations, and allowed approved applicants to place feed grain for waterfowl on specified acreage. This ostensibly attracted the birds away from the agricultural crops. The feeding licenses in question in this case are those issued to duck hunting clubs.
Under the pertinent California regulation, hunters on the licensed grain feeding clubs were allowed to hunt the ducks from 200 yards back; later amendments extended this limit to 250 yards. Cal. Admin. Code tit. 14, R. 54 § 336(c). FWS policy for many years has been that this California regulation is in conflict with the anti-baiting regulation. In 1961, a FWS baiting violation citation led to a decision by a court of this District, United States v. Olesen 196 F. Supp. 688 (S.D. Cal. 1961). The court in that case did not decide the question of whether the federal regulation met constitutional requirements of due process, as this was not the basis of the court's decision. Id. at 690. The court determined the California regulation to be in pari materia with the Federal regulation, as the Federal regulation did not define the area within which hunting could not occur, and the secretary of the Interior had not acted to change the federal regulation despite knowledge of the California regulation and its definition of "area" as being 200 yards back from the feed.
The Regional Director of the FWS in May, 1988 notified by letter the pertinent parties to the settlement agreement that he had reviewed the Frederickson study and numerous other studies and materials submitted to him, and determined that there would be no change in the federal anti-baiting regulations. The letter stated: "The Service will terminate the current Settlement Agreement at the beginning of the 1990-1991 migratory waterfowl hunting season."
It is this proposed action by the FWS which led to this lawsuit. Plaintiffs seek a preliminary injunction on the following grounds:
1) Defendants have misinterpreted the Migratory Bird treaty Act and the regulations promulgated pursuant thereto as the California regulations are not in conflict with either the federal act or the federal regulations;
2) Defendants are in violation of the National Environmental Policy Act in that they have failed to prepare an Environmental Impact Statement (EIS) for major federal action significantly ...