217 F.3d 882 (D.C. Cir. 2000)
The Humane Society of the United States, et al.,Appelleesv.Dan Glickman,  Secretary, U.S. Department of Agriculture, et al.,Appellants
No. 99-5309
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2000Decided July 18, 2000

Appeal from the United States District Court for the District of Columbia(98cv01510)
James C. Kilbourne, Attorney, U.S. Department of Justice,  argued the cause for appellants.  With him on the briefs were  Lois J. Schiffer, Assistant Attorney General, and Andrew  Mergen, Attorney.
Jonathan R. Lovvorn argued the cause for appellees. With him on the brief was Katherine A. Meyer.
Before:  Edwards, Chief Judge, Randolph and Garland,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
The "International Convention  for the Protection of Migratory Birds," 39 Stat. 1702 (1916),  between the United States and Great Britain (acting for  Canada) sought to preserve, in the words of Justice Holmes,  "a national interest of very nearly the first magnitude,"  Missouri v. Holland, 252 U.S. 416, 435 (1920).  The Treaty  "recited that many species of birds in their annual migrations  traversed certain parts of the United States and of Canada,  that they were of great value as a source of food and in  destroying insects injurious to vegetation, but were in danger  of extermination through lack of adequate protection."  Id. at  431.  Legislation implementing the Treaty--the Migratory  Bird Treaty Act of 1918--"prohibited the killing, capturing or  selling any of the migratory birds included in the terms of the  treaty except as permitted by regulations" now administered  by the Department of the Interior.1  252 U.S. at 431.  In this  appeal from the district court's order enjoining the Department of Agriculture from violating the statute, the question is  whether the Migratory Bird Treaty Act prohibits federal  agencies from killing or taking migratory birds without a  permit from the Interior Department.


2
* At the center of the controversy is the Canada goose-Branta canadensis. With its black-stockinged neck and head  and distinctive white cheek patch, its loud resonant honking  calls, and its V-shaped flight formations, the Canada goose is  a familiar sight throughout most of North America.  See  Frank C. Bellrose, Ducks, Geese and Swans of North America  142 (3d ed. 1980).  The Mid-Atlantic population of Canada geese, one of eleven recognized races, winters in the coastal  areas of Virginia, Delaware, and New Jersey, and returns in  the spring to the tundra zone of the Ungava Peninsula in  Quebec, its traditional summer breeding grounds.  See id. at  144-45.  In recent years, however, large flocks of Canada  geese have stopped migrating, preferring to breed, nest and  rear their young in the coastal states of the middle Atlantic  region.  The Commonwealth of Virginia has become a host to  many of these full-time residents.  In 1991, an estimated  66,169 Canada geese lived year round in Virginia.  By 1998  Virginia's resident goose population had quadrupled to  254,000.  See Wildlife Services, Animal and Plant Health  Inspection Service, U.S. Dep't of Agriculture, Environmental  Assessment for the Management of conflicts associated with  non-migratory (resident) Canada geese, migratory Canada  geese, and urban/suburban ducks in the Commonwealth of  Virginia  2.1, at 6 (Mar. 30, 1999) ("Environmental Assessment").  In the same year, only 70,000 migratory Canada  geese wintered over in Virginia, see id. tbl.5, at 18, a number  not much larger than the migratory population in the 1970s,  see Bellrose, supra, at 148.


3
Residential owners, farmers, government officials and  many others are deeply concerned about the exploding population of Canada geese.  Browsing by Virginia's resident  geese has reduced state-wide yields of cereal grains, peanuts,  soybeans and corn.  Goose droppings have spoiled water  quality around beaches and wetlands, and interfered with the  enjoyment of parks and ball fields.  The geese have damaged  gardens, lawns and golf courses.  Their fecal deposits threaten to contaminate drinking water supplies.  See Environmental Assessment  2.1.1, at 6;   2.1.2.1, at 7;   2.1.3.1, at 11; 2.1.4, at 12.  And they pose a hazard to aircraft.  Resident  geese are found at most of Virginia's airports and military  bases.  In 1995, a passenger jet hit ten Canada geese at  Dulles International Airport, causing $1.7 million of wing and  engine damage.  See id.  2.1.2.5, at 10.  Collisions have also  occurred at other Virginia airports.  And "Langley Air Force  Base and Norfolk Naval Air Station have altered, delayed,  aborted, and ceased flight operations because of Canada geese on their field."  Id.2


4
In response to these problems and others, the Department  of Agriculture, through its Animal Health and Inspection  Service's Wildlife Services division, instituted an "Integrated  Goose Management Program" in conjunction with Virginia  state agencies.  The plan called for various measures such as  harassment, biological control, habitat alteration, repellents,  nest and egg destruction, and capture and killing.  The  killings were to take place during the "summer molt"-between mid-June and late-July--when the resident geese  cannot fly (the migratory geese are in Canada at this time of  year).  An Environmental Assessment, issued on January 29,  1997, reflected the Interior Department's longstanding position that the Migratory Bird Treaty Act restricted not only  private parties and states, but also federal agencies.  Hence a  "federal Migratory Bird Depredation Permit ... would be  required and obtained for the proposed action."  Animal  Damage Control, Animal and Plant Health Inspection Service, U.S. Dep't of Agriculture, Environmental Assessment  for the Management of conflicts associated with nonmigratory (resident) Canada geese and urban/suburban mallard ducks in the State of Virginia 22 (Jan. 29, 1997).Interior's Fish and Wildlife Service (FWS) is authorized to  issue such depredation permits for migratory birds that  "bec[o]me seriously injurious to the agricultural or other  interests in any particular community."  International Convention for the Protection of Migratory Birds, art. VII, 39  Stat. 1702, 1704 (1916) ("International Convention"), referenced in 16 U.S.C.  704;  see also 50 C.F.R. pt. 21.


5
In 1997, the Director of FWS issued a memorandum to  regional directors stating that federal agencies no longer needed to obtain a permit before taking or killing migratory  birds.  The Humane Society of the United States, Citizens for  the Preservation of Wildlife, the Animal Protection Institute,  and three individuals thereupon filed suit against the Secretaries of Agriculture and Interior and other officials in those  departments seeking to enjoin implementation of the Goose  Management Plan.  The district court ruled that § 703 of the  Migratory Bird Treaty Act restricted federal agencies.  The  court therefore enjoined the defendants "from conducting the  Canada Goose Plan until such time as they shall obtain valid  permits to do so pursuant to the" Act.  Humane Soc'y v.  Glickman, No. 98CV-1510, memorandum opinion at 21-22  (D.D.C. July 6, 1999).

II

6
Although Virginia's Canada geese are year-long residents,  they are members of a species that migrates and therefore  fall within the category of "migratory birds" protected by the  1916 Treaty and the Act.  See 50 C.F.R.  10.13.  Protected  from whom?  The district court thought  703 of the Act  gave the answer--from everyone in the United States, including federal agencies.  The provision reads:


7
Unless and except as permitted by regulations made as herein after provided in this sub chapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, oris composed in whole or in part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August16, 1916 (39 Stat. 1702)....


8
16 U.S.C.  703.  As legislation goes,  703 contains broad  and unqualified language--"at any time," "by any means," "in  any manner," "any migratory bird," "any part, nest, or egg of  any such bird," "any product ... comprised in whole or part,  of any such bird."  The one exception to the prohibition is in  the opening clause--"Unless and except as permitted by  regulations made as hereinafter provided in this subchapter...."  For migratory game birds, of which the Canada  goose is one, the exception gives the Interior Department  authority to regulate hunting seasons and bag limits.  Article  II of the Treaty itself required a closed season--no hunting of  these birds--between March 10 and September 1, the typical  period when the birds breed, molt and raise their young.  In  addition to issuing hunting regulations, see, e.g., 50 C.F.R. pt.  20;  id.  20.105, the Secretary of the Interior may issue  permits for killing Canada geese and other migratory birds if  this is shown to be "compatible with the terms of the [Migratory Bird] conventions."3  16 U.S.C.  704.  As we have said,  Article VII of the Treaty contemplated that permits allowing  the killing of migratory birds would be available in "extraordinary conditions" when the birds have "become seriously  injurious to the agricultural or other interests in any particular community," International Convention, art. VII, 39 Stat.  1704.


9
As  703 is written, what matters is whether someone has  killed or is attempting to kill or capture or take a protected  bird, without a permit and outside of any designated hunting  season.  Nothing in § 703 turns on the identity of the perpetrator.  There is no exemption in § 703 for farmers, or golf  course superintendents, or ornithologists, or airport officials,  or state officers, or federal agencies.  In that respect, § 703  is rather like the statute in United States v. Arizona, 295 U.S.  174, 183-84 (1935), which also framed its prohibition in terms  of the forbidden acts without mentioning the identity of the  transgressor:  there shall be no "construction of any bridge,  dam, dike or causeway over or in any port, roadstead, haven,  harbor, canal, navigable river or other navigable water of the  United States until the consent of Congress shall have been  obtained and until the plans shall have been submitted to and  approved by the Chief of Engineers and by the Secretary of  War."  Id. at 184 (citing 33 U.S.C.  401).  The Court viewed  the provision as restricting not only private parties, but also  state and federal agencies, so that the Secretary of the  Interior could not order the building of a dam without congressional authorization.  "The plaintiff maintains that the  restrictions so imposed apply only to work undertaken by  private parties.  But no such intention is expressed, and we  are of opinion that none is implied.  The measures adopted  for the enforcement of the prescribed rule are in general  terms and purport to be applicable to all.  No valid reason  has been or can be suggested why they should apply to  private persons and not to federal and state officers."  Id. at  184.


10
The defendants here, in order to promote their position  that federal agencies are exempt from § 703, seek to introduce structural ambiguity into the Act, citing the criminal  penalty provision of  707(a):


11
Except as otherwise provided in this section, any per-son, association, partnership, or corporation who shallviolate any provisions of said conventions or of thissubchapter, or who shall violate or fail to comply withany regulation made pursuant to this subchapter shall bedeemed guilty of a misdemeanor and upon convictionthereof shall be fined not more than $15,000 or beimprisoned not more than six months, or both.


12
16 U.S.C. § 707(a).  Federal agencies, they say, cannot be  considered "persons" who may be held criminally liable for  violating the Act or the Treaty.  (They do not discuss whether federal officers carrying out the extermination of migratory birds could be considered "persons.") The defendants' reading of § 707(a) gains support from the canon that the  term "person" does not ordinarily include the sovereign.  See  United States v. Cooper Corp., 312 U.S. 600, 604 (1941).4  And  so we are willing to assume that the criminal enforcement  provision could not be used against federal agencies.  From  this the defendants reason that Congress could not have  intended to have § 703 restrict federal agencies because there  would have been no means to enforce the restrictions;  at the  time of its enactment, they tell us, there was no provision in  the Migratory Bird Treaty Act for injunctive relief.5


13
The argument goes nowhere.  Even without a specific  review provision, there still could have been a suit against the  appropriate federal officer for injunctive relief to enforce   703.  Missouri v. Holland, for instance, was a "bill in  equity brought by the State of Missouri to prevent a game  warden of the United States from attempting to enforce the  Migratory Bird Treaty Act."  252 U.S. at 430.  The Supreme  Court had already recognized the "equity injunction as a  method for review of administrative action" in Noble v. Union  River Logging Co., 147 U.S. 165 (1893), affirming an injunction against the Secretary of the Interior although the underlying statute contained no provision for judicial review.  4  Kenneth Culp Davis, Administrative Law Treatise  23:6, at  149 (2d ed. 1983).  By 1903 the Court had determined that  the "acts of all of [an agency's officers] must be justified by  some law, and in case an official violates the law to the injury  of an individual the courts generally have jurisdiction to grant  relief."  American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108 (1902);  see also U.S. Dep't of Justice,  Attorney General's Manual on the Administrative Procedure Act 97 (1947);  Richard H. Fallon et al., Hart and Wechsler's The Federal Courts and The Federal System 1015-17  (4th ed. 1996).  Defendants are, in short, quite mistaken in  supposing that § 703 could not be enforced against federal  agencies except through the criminal provision contained in  § 707(a).


14
Defendants' argument, and our assumption, that federal  agencies are not "persons" within § 707(a)'s meaning therefore does not lead to the conclusion that Congress meant to  exempt federal agencies from  703.  Indeed it would be odd  if they were exempt.  The Migratory Bird Treaty Act implements the Treaty of 1916.  Treaties are undertakings between nations;  the terms of a treaty bind the contracting  powers.  After ratification of the Treaty, President Woodrow  Wilson affixed his signature to it and made it public, "to the  end that the same and every article and clause thereof may  be observed and fulfilled with good faith by the United States  and the citizens thereof."  39 Stat. 1705 (italics added). If one  year later, in 1917, Canadian authorities had started slaughtering eider ducks, no one would doubt that Canada would be  guilty of violating Article IV of the Treaty, which protects  these ducks.  If some agency of the federal government did  the same in Alaska, the United States too would be in  violation of the Treaty.  There is no reason to treat the Act  differently from the Treaty since the legislation was meant to  "give effect to the convention between the United States and  Great Britain for the protection of migratory birds," ch. 128,  40 Stat. 755, 755 (1918).  The Act incorporates the terms of  the Treaty in determining, among other things, two critical  issues:  which birds are covered, see 16 U.S.C.  703, and  under what conditions the Interior Department may issue  exemptions, see id.  704.  See also id. §§ 708, 709a, 712 (all  referencing the conventions).  In short, the fact that the Act  enforced a treaty between our country and Canada reinforces  our conclusion that the broad language of § 703 applies to  actions of the federal government.


15
Canada too understood that legislation implementing the  Treaty applied to the sovereign.  If Canadian authorities kill  migratory birds without a permit they violate not only the Treaty, but also Canada's Migratory Birds Convention Act. That Act "is binding on Her Majesty in right of Canada or a  province."6  R.S.C., ch. 22,  3 (1994).  The Canadian Act,  like its American counterpart, derives from Article VIII of  the Treaty, which obligated both Contracting Powers to "propose to their respective appropriate law-making bodies the  necessary measures for insuring the execution of the present  Convention."  International Convention, art. VIII, 39 Stat.  1704.  That Canada treated this joint obligation to mean that  implementing legislation would be binding on the sovereign  indicates still further that  703 restricts the actions of  federal agencies in this country.


16
This too had been the longstanding conclusion of the Department of the Interior, which until 1997 had "historically  interpreted the provisions of the MBTA as applying to actions  of FWS employees themselves."  Letter from Frank K. Richardson, Solicitor, U.S. Dep't of the Interior, to the Secretary  of the Interior at 3 (May 31, 1985);  see also 50 C.F.R.   21.12.  Although FWS has now changed its mind, neither  Interior nor Agriculture asks us to defer to their interpretation of the Act, and for good reason.  The Agriculture Department does not administer the Act and so its view of  § 703's meaning is entitled to no special respect.  For its  part, the Interior Department conceded that the 1997 FWS  change of heart, in a letter to regional offices, was not "a  policy call on the part of the Service," nor "a 'filling in' of the  'gaps' in the" statute.  Federal Defendants' Opposition to  Plaintiff's Emergency Motion to Compel Defendants to File  an Administrative Record at 2 (June 4, 1999).  Christensen v.  Harris County, 120 S. Ct. 1655, 1657 (2000), holds that: Exemptions for law enforcement activities(5) For the purpose of investigations and other law enforcement activities under this Act, the Minister may, on any terms and conditions the Minister considers necessary, exempt game officers who are carrying out duties or functions under this Act, and persons acting under their direction and control, from the application of any provisions of this Act or the regulations."Interpretations such as those in opinion letters--like interpretations contained in policy statements, agency manuals,  and enforcement guidelines, all of which lack the force of  law--do not warrant Chevron-style deference."  See also  EEOC v. Arabian Oil Co., 499 U.S. 244, 257 (1991).


17
For many of the reasons we have mentioned, we disagree  with the "tentative conclusion" in Newton County Wildlife  Ass'n v. United States Forest Service, 113 F.3d 110, 115 (8th  Cir. 1997), and the holding in Sierra Club v. Martin, 110 F.3d  1551, 1555 (11th Cir. 1997), that § 703 does not apply to  federal agencies.  Both opinions rest on the mistaken idea  that in 1918, § 703 could be enforced only through the  criminal penalty provision in § 707(a).  The Martin opinion  adds the thought that Congress could not have wanted the  Act to apply to the Forest Service in the early 1900s because  whenever it cut trees it might be destroying migratory birds  or their nests, in violation of the Act.  See 110 F.3d at 1555.The Martin court's assumption that timber harvesting could  violate the Migratory Bird Treaty Act is not shared by  others.  The Eighth Circuit in Newton County, following the  lead of the Ninth Circuit in Seattle Audubon Society v.  Evans, 952 F.2d 297, 302 (1991), held that § 703 does not  prohibit "conduct, such as timber harvesting, that indirectly  results in the death of migratory birds."  113 F.3d at 114.Even if the Martin court were correct about timber harvesting, its observation about the Forest Service ignores the facts  that it was not until 1997 that the Interior Department  asserted immunity for federal agencies;  that before then the  Fish and Wildlife Service interpreted the Act to apply to all  federal agencies;  that during the pre-1997 period the Forest  Service, like other federal agencies, could obtain permits;  and  that--as the documents submitted in this case show--it was  the Martin case and other pending litigation that "spurred"  Interior to adopt the "new" interpretation.7


18
We conclude that because the Wildlife Services division of  the Department of Agriculture did not obtain a permit from  the Department of the Interior, its implementation of the  Integrated Goose Management Plan by taking and killing  Canada Geese violates  703 of the Migratory Bird Treaty  Act.


19
Affirmed.



Notes:


1
 The Act originally delegated regulatory authority to the Department of Agriculture.  The 1939 Reorganization Plan No. II,   4(f), 53 Stat. 1433, transferred the functions of the Secretary of  Agriculture relating to the conservation of wildlife, game, and  migratory birds to the Secretary of the Interior.


2
 Resident Canada geese and the problems they cause are not  confined to the east coast.  The Washington Post reported that the  Agriculture Department, having obtained a permit from FWS, is  rounding up resident Canada geese and killing them in twelve  counties surrounding Puget Sound in Washington State.  See Ben  White, Honk if You Hate Goose Droppings, Wash. Post, June 29,  2000, at A29.


3
 "Subject to the provisions and in order to carry out the  purposes of the conventions ... the Secretary of the Interior is  authorized and directed, from time to time ... to determine when,  to what extent, if at all, and by what means, it is compatible with  the terms of the conventions to allow hunting, taking, capture, [or]  killing ... of any such bird ... and to adopt suitable regulations  permitting and governing the same...."


4
 The canon applies not only to the federal government but also  to the States.  See Vermont Agency of Natural Resources v. United  States ex rel. Stevens, 120 S. Ct. 1858 (2000).  Yet defendants  maintain that States and state agencies are subject to the Act's  restrictions.


5
 Today, the Administrative Procedure Act, 5 U.S.C. § 702,  authorizes suits in federal courts naming the United States as a  defendant and specifying in any injunctive decree the federal officers "personally responsible" for compliance.


6
 See also R.S.C., ch. 22,  6:
Exemptions for law enforcement activities
(5) For the purpose of investigations and other law enforcement activities under this Act, the Minister may, on any terms and conditions the Minister considers necessary, exempt game officers who are carrying out duties or functions under this Act, and persons acting under their direction and control, from the application of any provisions of this Act or the regulations.


7
 Nor did the Martin court acknowledge the Supreme Court's  dictum in Robertson v. Seattle Audubon Society, 503 U.S. 429  (1992), that the Act applies to federal agencies.


