This was action by the FWS to enforce its regulation, and to maintain its longstanding policy against baiting. Since the court does not agree that the termination of the settlement agreement was a major federal action, it need not reach any determination as to the adequacy of the Environmental Assessment or of the Finding of No Significant Impact.
Arbitrary and Capricious Agency Action
Plaintiffs claim that the FWS was arbitrary and capricious in its decision to "terminate the California feeding program." Federal law prohibits agency action which is arbitrary and capricious. 5 U.S.C. § 706(2)(A).
The court cannot find that the FWS action terminates the California feeding program, nor that any action to enforce the regulations and consequently change the California feeding program is arbitrary and capricious. While the effect of enforcement may be to virtually stop hunters from shooting in a baited area, this does not necessarily terminate the California feeding program. Furthermore, a Federal agency could not "terminate" the California feeding program; it is a state, not federal, statute.
The FWS did state in its May 1988 letter to the California Department of Fish and Game that it would work with the Department to "phase out" the existing feeding program in California. The record before the court establishes that the FWS has on numerous occasions offered to help the hunting clubs find alternatives to baiting, including utilization of natural vegetation to attract the waterfowl.
Even if the court liberally construes the plaintiffs's charge that the agencies actions are arbitrary and capricious, it can find no grounds on which to reach this conclusion. Other than those actions discussed above, Plaintiffs do not present any specific actions for the court's review. In their reply to Defendants's sur-response, Plaintiffs assert that the regulation is unconstitutional, but this argument is only a reiteration of the Olesen decision. Plaintiffs have not otherwise challenged the regulation itself, or the administrative process which produced the regulation.
This controversy has proceeded for thirty years, and the record shows careful consideration by the FWS of a wealth of scientific studies and of the arguments made by hunters who support and oppose current baiting practices. The court finds no reason not to allow the federal government to proceed with the enforcement of anti-baiting regulations in the same fashion that they are enforced across the country. Delahoussaye at 913.
IT IS SO ORDERED.
Dated: November 2, 1990
GORDON THOMPSON, JR.
United States District Judge
JUDGMENT IN A CIVIL CASE - November 2, 1990, Filed; November 8, 1990, Entered
IT IS ORDERED AND ADJUDGED the court hereby denies plaintiffs' motion for preliminary injunction. . . .
November 2, 1990
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