Full opinion text
MEMORANDUM AND ORDER CASTEL, District Judge. The double-crested cormorant (Phalacrocorax auritus) is a water bird native to North America. It is a fish-eating bird with a hooked bill, turquoise eyes, a long tail, dark brown in Color with two white crests of feathers that appear on its head during breeding season. This lawsuit arises over federal efforts to manage the nation’s population of double-crested cormorants. According to the administrative record, the species has been responsible for the loss of at least $25 million in annual catfish production, largely in the Mississippi Delta. The plaintiffs challenge two rules that they assert were adopted in violation of treaty obligations and a battery of federal statutes. They seek declaratory and injunctive relief. Both sides have moved for summary judgment. For the reasons explained below, the plaintiffs’ motion is denied, and the defendants’ motion is granted. Background According to the United States Fish and Wildlife Service (the “Agency,” “Fish and Wildlife Service” or “FWS”), the double-crested cormorant is one of 38 cormorant species worldwide, and one of six found in North America. (FWS at 3161) Double-crested cormorants often live in flocks, and are sometimes confused with geese or loons. (FWS at 3161) Prior to 1970, the cormorant population was jeopardized by DDT and other organochlorine contaminants. (Pl. 56.1 ¶ 3; Def. 56.1 at 11; Migratory Bird Permits; Regulation for Double-Crested Cormorant Management, 68 Fed.Reg. 12,653 (March 17, 2003)) The population recovered during the 1970s and 1980s, but its growth rate slowed during the 1990s. (Pl. 56.1 ¶ 3; Def. 56.1 at 11; FWS at 5507, 5510-11) It is not a species protected by the Endangered Species Act, 16 U.S.C. § 1531, et seq. The estimated population of the bird is about 2 million. (FWS at 5540) As the population expanded and the birds became more visible, fishermen and others complained that the birds were responsible for declining fish stocks. (Pl. 56.1 ¶ 4; Def. 56.1 at 11-12; FWS at 9910) Cormorants also were drawn to the live fish raised in aquaculture facilities for human consumption. Migratory Bird Permits; Regulation for Double-Crested Cormorant Management, 68 Fed.Reg. 58,022, 58,026 (Oct. 8, 2003). Specifically, the cormorants have proved detrimental to commercial catfish farms located near the Mississippi Delta. Id. The birds’ eating habits prompted the aquaculture industry to seek curbs on the cormorant population. (Pl. 56.1 ¶ 5; Def. 56.1 at 12; FWS at 5493, 5511, 5515, 5566-68) The Fish and Wildlife Service is the federal agency with primary responsibility for the regulation of migratory birds. 68 Fed.Reg. 12,653. Its authority to regulate the double-crested cormorant arises from the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 703 et seq., which implements bilateral conventions that the United States signed with Great Britain, Mexico, Japan and Russia. The double-crested cormorant received federal protection under the 1972 amendment to the Convention for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, United States-Mexico, 50 Stat. 1311, T.S. No. 912. Under the statute’s terms, protected birds may not be “take[n]” except as authorized by regulations implementing the MBTA. 16 U.S.C. § 703. According to 50 C.F.R. § 10.12: “Take means to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” See also Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F.3d 110, 115 (8th Cir.1997) (“take” and “kill” mean physical contact the type of which is engaged in by hunters and poachers), cert. denied, 522 U.S. 1108, 118 S.Ct. 1035, 140 L.Ed.2d 102 (1998). In an attempt to address complaints about the double-crested cormorant’s deleterious effects on aquaculture, the FWS adopted the Aquaculture Depredation Order (“ADO”) in 1998. 50 C.F.R. § 21.47. Depredation is defined as “an act of plundering, despoiling, or making inroads.” Webster’s Third Int’l Dictionary Unabridged (2002). The ADO permits landowners, operators and tenants of aquaculture facilities to utilize firearms to take double-crested cormorants when the birds are found committing or about to commit acts of depredation on the aquaculture stock. 50 C.F.R. § 21.47. It also permits the killing of double-crested cormorants only within the boundaries of aquaculture facilities in thirteen states. 50 C.F.R. § 21.47(c)(1). Subsequent to the ADO’s issuance, the Fish and Wildlife Service continued to receive complaints about the cormorant population. By 1999, the regional offices of the Fish and Wildlife Service- received an increasing number of applications for cormorant depredation permits unrelated to aquaculture, at which time FWS began to explore additional methods to control the cormorant population. (Pl. 56.1 ¶ 6; Def. 56.1at 12; FWS at 9884-92; 9906-19) In addition to decrying the birds’ effects on aquaculture, the complaints received by FWS claimed that the cormorants were destroying vegetation, causing erosion, displacing other bird species and reducing sport fish populations. (Def. 56.1 ¶ 5; FWS at 9910) In November 1999, the Fish and Wildlife Service issued a Notice of Intent to develop a national management plan and to prepare an Environmental Impact Statement (“EIS”) to consider different methods of addressing complaints over cormorant activities without unduly depleting the bird’s population. (Pl. 56.1 ¶ 6; Def. 56.1 at 12; Migratory Bird Permits; Notice of Intent To Prepare an Environmental Impact Statement and National Management Plan for the Double-Crested Cormorant, 64 Fed.Reg. 60,826 (Nov. 8, 1999)) .The Fish and Wildlife Service received public comments in response to the Notice of Intent, which included submissions that were both supportive and critical of widespread efforts to limit the cormorant population. (Pl. 56.1 ¶ 7; Def. 56.1 at 13; FWS at 21-119, 436-521, 608-11, 1281-87, 1292-94, 1312-19) A so-called “Cormorant Team” formed for the purpose of evaluating methods of managing the cormorant population. (Pl. 56.1¶ 8; Def. 56.1’ at 13) The team was comprised of staff from the Fish and Wildlife Service’s Division of Migratory Birds Management, migratory bird staffers from the FWS’s regional offices, in consultation with representatives of the Animal and Plant Health Inspection Service’s (“APHIS”) Wildlife Services division. (Pl. 56.1¶ 8; Def. 56.1 at 13-14; FWS at 11109) As of October 2000, the Cormorant Team considered several population-management alternatives, including, but not limited to, the following: (1) no damage control; (2) non-lethal management; (3) maintaining the then-existing system by pursuing no action; (4) increased lethal control, possibly via an expanded depredation order, (5) coordinated statewide management; (6) allowing for sport-hunting; and (7) “[r]escindment of MBTA protection.” (FWS at 11433) In August 2001, the FWS’s Division of Migratory Birds issued a draft Environmental Impact Statement (“Draft EIS”) to the Fish and Wildlife Service’s regional offices. (FWS at 2729-2891) An EIS is required by statute. 42 U.S.C. § 4332(2)(C). In the Draft EIS, the FWS set forth the proposed action of issuing a “Public Resource Depredation Order” (the “Order” or “PRDO”) that would allow state and federal wildlife agencies “greater flexibility and timeliness in dealing with [double-crested cormorant]-related public resource conflicts, while maintaining Federal oversight of [double-crested cormorant] populations.” (FWS at 2748) The ADO would remain in place, and expanded to permit the thirteen affected states to engage in winter roost control. (FWS at 2748) In all other states, aquaculture depredation would be addressed through depredation permits. (FWS at 2748) State and federal agencies would be required to record the location of birds taken, and population counts of the double-crested cormorant would occur at ten-year intervals. (FWS at 2748-49) In addition, state and federal authorities would be permitted to take double-crested cormorants on public lands or waters. (FWS at 2749) The Draft EIS also considered whether population-control measures would adversely affect other migratory birds or any species protected by the Endangered Species Act. (FWS at 2749) The Fish and Wildlife Service released the Draft EIS for public comment in December 2001. Notice of Availability; Draft Environmental Impact Statement on Double-Crested Cormorant Management, 66 Fed.Reg. 60,218 (Dec. 3, 2001). As summarized in the Federal Register, Our proposed action ... modifies the existing Aquaculture Depredation Order and establishes a new Public Resource Depredation Order to allow public resource managers greater flexibility in dealing with cormorant conflicts while ensuring Federal oversight via reporting and monitoring requirements. Id. The publication of the Draft EIS was followed by a 100-day public comment period, including 10 public meetings. Notice of Availability; Final Environmental Impact Statement on Double-Crested Cormorant Management, 68 Fed.Reg. 47,603. The Cormorant Team received 994 letters, faxes and e-mails, a 32.2-percent plurality of which supported adoption of a Public Resource Depredation Order. Id. On March 17, 2003, the Fish and Wildlife Service published a proposed rule adopting the PRDO. 68 Fed.Reg. 12,653. It surveyed the procedural history of the FWS’s efforts to control the double-crested cormorant population, as well as the bird’s geographic distribution throughout North America. 68 Fed.Reg. at 12,653-55. As one of its premises, the proposed rule stated that cormorants posed a specific threat to artificial, highly managed fish populations, and that their impact on other fish populations varied across regions. 68 Fed.Reg. at 12,655. The proposed rule also asserted that other bird species may be negatively affected by the burgeoning double-crested cormorant population, that its highly acidic guano destroyed vegetation, and that it was responsible for $25 million of lost catfish production annually. 68 Fed.Reg. at 12,655-56. In light of the comments submitted in response to the Draft EIS, the Fish and Wildlife Service revised the terms of its proposed rule. It determined that the Public Resource Depredation Order should apply to the 24 states where the double-crested cormorant population most threatened public resources, rather than the 48 states initially proposed. Id. at 12,654. ‘While the [FWS] has the primary responsibility of regulating [double-crested cormorant] management, on the-ground management activities are largely carried out by entities such as State fish and wildlife agencies, wildlife damage control agencies such as the Wildlife Services program of [APHIS] and, in some cases, by private citizens.” Id. The PRDO would apply only to land and freshwater. Id. As approved means of population control, it permitted egg oiling, egg and nest destruction, cervical dislocation, shooting, and C02 asphyxiation. Id. The Fish and Wildlife Service received nearly 10,000 public comments, approximately 85 percent of which expressed opposition to the proposed rule. (Pl. 56.1 ¶ 19; Def. 56.1 at 20) The FWS ascribes the level of opposition to organized e-mail and letter-writing campaigns. (Def. 56.1 at 20; 68 Fed.Reg. at 58,023; FWS at 6190, 6195) According to the plaintiffs, the comments submitted in response to the proposed rule were submitted by “[s]eien-tists, ornithological organizations, [and] environmental organizations,” and largely argued that the rule “was an extreme overreaction” that risked lasting damage to double-crested cormorants and other species, and represented an overly broad grant of authority to states. (Pl. 56.1 ¶ 19) Along with the public comments received by the Cormorant Team, the proposed rule triggered sometimes-pointed disagreements within the Fish and Wildlife Service itself. See, e.g., FWS at 12352, 13031, 13033-45. These intra-agency disagreements are discussed in greater detail below. In August 2003, the Fish and Wildlife Service issued its Final Environmental Impact Statement (“Final EIS”) on double-crested cormorant management. 68 Fed. Reg. 47,603. The Final EIS totaled approximately 207 pages, including appendices. (FWS at 5480-5687) It included agency responses to 74 public comments and summaries of twelve public meetings at which the Draft EIS was discussed. (FWS at 121-138, 5678-5681) It also evaluated the comparative merits and drawbacks of six alternative approaches to double-crested cormorant control. (FWS at 5536-91) A final rule issued on October 8, 2003. 50 C.F.R. § 21.48; 68 Fed.Reg. at 58,035. In the Record of Decision implementing the new rule, the FWS noted that “[p]ublic involvement occurred throughout the [environmental impact statement] and rule-making process. From 1999 to 2003, we held 22 public meetings over the course of 10 months of total public comment.” 68 Fed.Reg. at 58,033. The Record of Decision stated that the final rule had been adopted because it was environmentally sound, cost effective, and flexible enough to satisfy different management needs around the country, and did not threaten long-term sustainability of the double-crested cormorants or other natural resources. 68 Fed.Reg. at 58,033-34. “It will provide a net benefit to fish, wildlife, and plants by allowing agencies to control [double-crested cormorants] to protect these resources from damages.” 68 Fed. Reg. at 58,034. The final rule- governs the taking of double-crested cormorants on land and in the freshwater of 24 states. It reads in part: This depredation order authorizes State • fish and wildlife agencies, Federally recognized Tribes, and State Directors of [APHIS’s Wildlife Service Program] to prevent depredations on the public resources of fish (including hatchery stock at Federal, State, and Tribal facilities), wildlife, plants, and their habitats by taking without a permit double-crested cormorants found committing or about to commit, such depredations. 50 C.F.R. § 21.48(c)(1). The rule provides that non-lethal control methods should first be attempted as a means of population control. 50 C.F.R. § 21.48(d)(1). Thereafter, double-crested cormorants “may be taken only by means of egg oiling, egg and nest destruction, cervical dislocation, firearms, and C02 asphyxiation.” 50 C.F.R. § 21.48(d)(2). The rule specifies acceptable forms of shotgun shot and egg-oiling substances. Id. “Nothing in this depredation order authorizes the take of any migratory bird species other than double-crested cormorants.” 50 C.F.R. § 21.48(d)(7). The rule also included measures intended to protect bird species such as the anhinga, the neotropic cormorant, the piping plover, the interior least tern, the wood stork and the bald eagle from any impact from the rule’s implementation. 50 C.F.R. § 21.48(d)(7), (8). Any agency whose single control action would kill more than 10 percent of a breeding colony is bound by pre-clearance procedures. 50 C.F.R. § 21.48(d)(9)(i), (12). In addition to adopting the PRDO, the FWS also amended the ADO to allow the take of double-crested cormorants at their winter roost sites. 68 Fed.Reg. at 58,031. In the Final EIS, the defendants estimate that the annual take of double-crested cormorants will total 159,635 birds, out of a total continental population of approximately two million. (FWS at 5540) Approximately eight percent of the bird’s total population will be taken each year. (FWS at 5540) Plaintiffs commenced this action by filing their Complaint on February 5, 2004. Though the cormorants’ depredation of commercial aquaculture appears to have the greatest impact in the lower Mississippi region, New York is one of 24 states affected by the PRDO, and venue is clearly proper. An Amended Complaint (“AC”) was filed on May 13, 2004. The plaintiffs are comprised of organizations that work on behalf of the protection and preservation of native wild animals, and include individual persons located throughout the United States who describe themselves as avid bird watchers and photographers. (AC ¶¶ 3, 7, 11, 15, 19, 22, 26, 29, 32) Plaintiffs challenge the PRDO, codified at 50 C.F.R. § 21.48, for its alleged failure to comply with the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq., the Fish and Wildlife Service’s own implementing regulations, 50 C.F.R. § 21 et seq., the Endangered Species Act, 16 U.S.C. § 1531 et seq., the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act, 5 U.S.C. § 706. They also seek declaratory and injunctive relief declaring the ADO, the PRDO, and the Record of Decision to be in violation of governing law and setting them aside, and awarding costs and attorneys’ fees. Defendants filed their answer to the AC, and both sides moved for summary judgment shortly thereafter. Summary Judgment Standard Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Fed.R.Civ.P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it “might affect the outcome of the suit under the governing law ...” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004). When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party’s claim cannot be sustained, the opposing party must “set forth specific facts showing that there is a genuine issue for trial,” and cannot rest on “mere allegations or denials” of the facts asserted by the mov-ant. Rule 56(e), Fed.R.Civ.P. In raising a triable issue of fact, the nonmovant carries only “a limited burden of production,” but nevertheless “must ‘demonstrate more-than some metaphysical doubt as to the material facts,’ and come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Powell v. Nat’l Bd. of Medical Examiners, 364 F.3d 79, 84 (2d Cir.2004) (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993)). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The Court must “view the evidence in the light most favorable to' the non-mowng party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (quotations and citations omitted); accord Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. See Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id. “Summary judgment is particularly appropriate in cases in which the court is asked to review or enforce a decision of a federal administrative agency.” Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2733 (3d ed.1998). When a court reviews a final agency decision, the summary judgment standard also takes into account 5 U.S.C. § 706(2) of the Administrative Procedure Act (“APA”). Section 706 of Title 5 states: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall - (1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action, ■ findings, and conclusions found to be - (A) arbitrary, ■ capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. A reviewing court must “engage in a substantial inquiry” of the administrative record before the agency, but “the ultimate standard of review is a narrow one,” and the reviewing court “is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on unrelated grounds, Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Court’s review must be “thorough, probing, [and] in-depth. ...” Id. at 415, 91 S.Ct. 814. Although the. parties disagree as to the characterization and weight afforded to certain facts, they do not present any genuine disputes of material fact. Because there is no dispute as to any material fact, summary judgment is appropriate in this case. Standing The defendants challenge the standing of plaintiffs Humane Society of the United States, Animal Rights Foundation of Florida, Gustav Verdeberer and Julie Baker. They do not challenge the standing of the other plaintiffs, who, as part of their moving papers, proffer declarations that assert their standing. In response to a summary judgment motion that challenges a plaintiffs standing, a plaintiff may not rest on allegations of injury, and must set forth by affidavit or other evidence the basis for which they assert standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Although defendants are correct that not all plaintiffs included affidavits as part of the moving papers, in opposition to the defendants’ summary judgment motion, the defendants proffer the affidavits of Ms. Baker and Mr. Verdeberer. These affidavits satisfy the factual threshold necessary for standing. Lujan made clear that to survive a motion for summary judgment that challenges a plaintiffs standing, one or more members of a plaintiff organization must offer specific facts sufficient to show that they are (or would be) directly affected by that action. Id. at 563, 112 S.Ct. 2130. The failure of the Humane Society of the United States and the Animal Rights Foundation of Florida to submit any member affidavit containing facts sufficient to show standing requires these parties to be dismissed from the action. See id.; accord Sierra Club v. Morton, 405 U.S. 727, 736, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (although the litigation was labeled a “public” action and involved the use of natural resources, plaintiff Sierra Club’s failure to offer facts showing particularized injury required dismissal of party for lack of standing). The absence of any affidavit from these two organizations contrasts with the affidavits submitted by Janet Runyan on behalf of Defenders of Wildlife. Ms. Run-yan, a resident of Pickford, Michigan, described the personal and aesthetic pleasure derived from the double-crested cormorant. (Plaintiffs’ Ex. 19) Similarly, on behalf of the Fund for Animals, Marian Probst, a resident of New York, NY, described her lifelong affection for double-crested cormorants and the injuries she would incur if their population diminished. (Plaintiffs’ Ex. 19) Environmental plaintiffs have suffered cognizable injury when aesthetic and recreational enjoyment are hindered by a certain action. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Plaintiffs Humane Society of tbe United States and the Animal Rights Foundation of Florida set forth no facts showing such an injury. As such, they are dismissed from this action for lack of standing. Discussion Plaintiffs argue that the Public Resource Depredation Order violates the Migratory Bird Treaty Act, the MBTA’s conventions, and is arbitrary and capricious under the APA. They also argue that the PRDO violates the Fish and Wildlife Service’s own implementing regulations. Plaintiffs argue that the failure to undertake a formal intra-service consultátion as to the impact of the depredation orders violated the Endangered Species Act. Lastly, they argue that both the Fish and Wildlife Service and the Animal and Plant Health Inspection Service violated the National Environmental Policy Act in the Final EIS that analyzed the PRDO. I address each of these arguments in turn. I. Does the Agency’s Order Com/ply with the Migratory Bird Treaty, Its Conventions, and Implementing Statute? The Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., was signed into law in 1918 and has since been amended three times, most recently in 1989. It implements four bilateral migratory bird treaties signed between the United States and Canada (entered on Canada’s behalf by Great Britain), Mexico, Japan and the U.S.S.R. Convention for the Protection of Migratory Birds, Aug. 16, 1916, U.S.-Gr. Brit., 39 Stat. 1702, T.S. No. 628; Convention for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, U.S.Mex., 50 Stat. 1311, T.S. No. 912; Convention for the Protection of Birds and Birds in Danger of Extinction and their Environment, Mar. 4, 1972, U.S.-Japan, 25 U.S.T. 3329, T.I.A.S. No. 7990; Convention Concerning the Conservation of Migratory Birds and Their Environment, Nov. 19, 1976, U.S.-U.S.S.R., 29 U.S.T. 4647, T.I.A.S. No. 9073. The MBTA reads in relevant part: Unless and except as permitted by regulations made as hereinafter provided in this subchapter, 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 ... any migratory bird, nest, or egg of any such bird ... included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States ... Japan ... and the Union of Soviet Socialist Republics. 16 U.S.C. § 703. Pursuant to 16 U.S.C. § 712(2), Congress delegated to the Secretary of Interior the power to issue regulations effectuating the four treaty conventions. Section 704(a) authorizes the Secretary of Interior, acting through the Fish and Wildlife Service, to regulate when and to what extent migratory birds may be captured or killed. 16 U.S.C, § 704. Any such decision must factor “due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory Bight of such birds.” Id. “Without undertaking to review the numerous decisions construing the Migratory Bird Treaty Act, it may be said in general that the authority conferred upon the Secretary of the Interior has been liberally construed.” Bailey v. Holland, 126 F.2d 317, 322 (4th Cir.1942). In State of Missouri v. Holland, 252 U.S. 416, 435, 40 S.Ct. 382, 64 L.Ed. 641 (1920), Justice Holmes, writing for the Court, observed that the Migratory Bird Treaty signed between the United States and Great Britain established a national approach to the management of migratory bird populations. “Wild birds are not in the possession of anyone.... The whole foundation of the State’s rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State and in a week a thousand miles away.” Id. at 434, 40 S.Ct. 382. “Here, a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power.” Id. at 435. Missouri v. Holland acknowledges that under the Treaty, the signatories, including the United States, have ceded absolute and unfettered control over the management of migratory bird populations. Id. at 434, 40 S.Ct. 382. This includes the control once exercised by the individual sovereign states. Id. at 434-35, 40 S.Ct. 382. Although the statute that implements the Treaty, the MBTA, is a criminal statute that establishes strict liability for individuals responsible for the death of protected birds, see United States v. FMC Coloration, 572 F.2d 902, 907-08 (2d Cir.1978), courts have held that private plaintiffs may, via the Administrative Procedure Act, pursue claims against agencies for failure to adhere to the MBTA’s terms. See, e.g., Hill v. Norton, 275 F.3d 98, 103 (D.C.Cir.2001) (“Because the MBTA does not create a private right of action or otherwise provide a process for judicial review, the Secretary’s disputed failure to include the mute swan on the List of Migratory Birds can only be challenged by [plaintiff] under the APA.”). The plaintiffs argue that in adopting the PRDO, the Fish and Wildlife Service abdicated a statutory responsibility under the MBTA to determine whether cormorant removal is warranted or compatible with the Treaty’s conventions, inasmuch as the PRDO permits states and tribes to make decisions as to the cormorant population without regard to factors listed under the MBTA. In the plaintiffs’ view, the terms of 50 C.F.R. § 21.48(c)(1), allowing for the taking of double-crested cormorants engaged in depredation, contradicts section 704’s mandate to the Secretary of the Interior to determine “when, to what extent” and “by what means” a protected bird may be taken or killed. A. The Agency’s Order Does Not Conflict With the Statute. I first consider whether the PRDO conflicts with the terms of the MBTA. The FWS adopted the PRDO pursuant to the Administrative Procedure Act’s “notice- and-eomment” rulemaking, or so-called “informal” rulemaking. The APA establishes three requirements for such rule-making: First, the agency gives prior notice through the Federal Register. 5 U.S.C. § 553(b). After publication of notice, the agency must “give interested persons an opportunity to participate” through written comments. 5 U.S.C. § 553(c). Following consideration of public comments, the agency must issue “a concise general statement of ... basis and purpose.” Id. The Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), set forth the circumstances in which a reviewing court defers to an agency’s statutory interpretations: When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. The judiciary is “the final authority” on statutory construction. Id. at 843 n. 9, 104 S.Ct. 2778. If Congress has not directly spoken to the disputed issue, however, then an administrative agency is empowered to fill any gaps left by the statute. Id. at 843-44, 104 S.Ct. 2778. “Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778. Prior to enactment of the PRDO, the FWS had established two regulations by which the agency could authorize the taking of migratory birds that were causing depredation to agriculture. Under 50 C.F.R. § 21.41, the FWS may issue a depredation permit that allows the taking of migratory birds on a site-specific basis. A second regulation, 50 C.F.R. § 21.42, empowers the FWS to issue a depredation order that permits the taking of migratory game birds when they “have accumulated in such numbers in a particular area as to cause or about to cause serious damage to agricultural, horticultural, and fish cultural interests.” Other regulations promulgated by the FWS, 50 C.F.R. §§ 21.43-21.46, have established depredation orders for other species of migratory birds. In recent years, the United States Court of Appeals for the District of Columbia has twice found that the Department of Interi- or and FWS acted in contravention to the MBTA’s terms when taking regulatory action that allowed for the taking of migratory birds. See Humane Society of the United States v. Glickman, 217 F.3d 882 (D.C.Cir.2000) (Interior Department violated terms of the MBTA in issuing interpretive policy statement that allowed federal agencies to kill or take the Canada goose (Branta canadensis) without -a permit); Hill, 275 F.3d at 105-06 (Interior secretary failed to comply with MBTA’s terms by striking mute swans from list of protected migratory birds). More recently, in Fund for Animals v. Williams, 246 F.Supp.2d 27, 41 (D.D.C.2003), amended on other grounds, 311 F.Supp.2d 1 (D.D.C.2004), a district court upheld the FWS’s final rule from a challenge under the APA and MBTA. The FWS issued a rule that expanded the hunting season of the trumpeter swan {Cygnus buccinator) in Montana, Utah and Nevada. Id. at 31. The rule included a quota on the number of trumpeter swans that could be killed within a hunting season. Id. The court followed a two-step approach in determining whether the FWS’s rule conflicted with Congress’s clear intent. First, it evaluated the extent to which the agency action conformed to the terms of the MBTA: Consistent with the MBTA’s “due regal'd” directive, each of the three final [Environmental Assessments] issued by the [FWS] described the Trumpeter swans’ distribution, population level (or abundance), breeding habits, migratory path (or lack thereof), and local economic impacts. Each [Environmental Assessment] also analyzed the impact of the preferred management proposal and other management alternatives.... The court therefore concludes that the defendants gave “due regard” to the MBTA factors. Id. at 40 (internal citations omitted). Having found the FWS’s approach- consistent with statutory authority, the court next considered the manner in which the quota authorization should be evaluated for compatibility with “the terms of the convention,” as set forth by section 704(a). Id. at 39. The court ruled that only the U.S.Canada and U.S.-Mexico conventions— rather than all four migratory bird conventions — pertained to trumpeter swans. Id. It grounded its analysis of the defendants’ actions in the U.S.-Canada convention, which the court deemed the more restrictive of the two. Id. Under the U.S.-Canada convention, the signatories were to “ensure a variety of sustainable uses, sustain healthy populations for harvesting needs, and restore depleted populations” of listed migratory birds, including swans. Id. at 40. Still, the court characterized the FWS’s approach as “gambling” that its solution would -lead to a healthier, more viable trumpeter swan population. Id. The court deferred to the FWS’s expertise in making this “gamble,” and found the hunting quota permissible under the U.S.-Canada convention. Id. Consistent with Chevron, I first turn to whether the PRDO contradicts the language of the MBTA, or whether, in the alternative, it is the product of an agency effort to fill in statutory gaps. 467 U.S. at 842-43, 104 S.Ct. 2778. Having closely scrutinized the terms of the MBTA and the PRDO, I find no conflict between the two. Section 704(a) requires the FWS to exercise “due regard” for zone of temperature, distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of protected birds. In setting forth its rationale for adopting the PRDO, the FWS evaluated the double-crested cormorants’ migration routes and breeding habits. (FWS at 5506-07, 5512-13) It addressed the bird’s continent-wide population, conservatively: estimating the number to be 2 million, though the- highest estimate totaled 2,426,353. (FWS at 5507-08, 5510-11) The FWS evaluated the distribution and zone of population of the bird’s population, dividing the cormorant’s population into four segments of North America. (FWS at 5508-10; 68 Fed.Reg. at 58,024-025) The economic impacts of the double-crested cormorant' were discussed in light of the bird’s aquaculture depredation. (FWS at 5524-29) The PRDO’s approach to managing the cormorant population- — essentially, granting limited discretion to federally recognized tribes, and state fish and wildlife agencies, and state directors of APHIS’s Wildlife Services programs — does not contradict any provision in the MBTA’s text. The MBTA vests the Interior Secretary with the power “to determine when, to what extent, if at all, and by what means” the taking of birds is permissible, and “to adopt suitable regulations permitting and governing the same_....” 16 U.S.C. § 704(a). The PRDO does precisely that. In drafting and adopting the PRDO, it was the FWS’s duty to balance the factors set forth by the MBTA. The FWS’s ultimate delegation of authority to regional FWS and state APHIS Wildlife Services directors, state agencies and federally recognized tribes does not depart from the MBTA’s language or intent. Nor does the PRDO unduly cede federal power to the states, or vary from the national approach to bird management required by the MBTA. The “national action” envisioned by Missouri v. Holland is not undercut by virtue of the PRDO’s limited grant of power to state agencies and regional branches of the FWS. The FWS has not abdicated its authority, or granted states free reign over management of the cormorant population. To the contrary, agencies seeking to initiate control activities must first provide notice to the appropriate Regional Migratory Bird Permit Office and provide a detailed description of the proposed population control activity, including the location of the activity, a description of how the cormorant impacted public resources, and how many birds are likely to be taken. 50 C.F.R. § 21.48(d)(9). Double-crested cormorants may be taken only according to prescribed methods. 50 C.F.R. § 21.48(d)(2). This contrasts with United States Telecom Association v. Federal Communications Commission, 359 F.3d 554, 565-68 (D.C.Cir.), cert. denied, — U.S. -, 125 S.Ct. 313, — L.Ed.2d - (2004), in which the D.C. Circuit struck down the Federal Communications Commission’s decision to subdele-gate its decisionmaking authority to state commissioners. In that case, the FCC “delegated to another actor almost the entire determination of whether a specific statutory requirement” was fulfilled. Id. at 567. In light of the foregoing, I conclude that the PRDO does not conflict with the MBTA. B. The Agency’s Order Does Not Conflict with Individual Treaty Conventions Having found no conflict between the PRDO and the MBTA’s text, I turn to whether the PRDO “is compatible with the terms of the conventions.... ” 16 U.S.C. § 704(a). As already noted, Williams concluded that agency action should be evaluated for compliance only as to conventions that explicitly govern the disputed bird species, not for compliance with all four conventions. 246 F.Supp.2d at 39. “Although the MBTA covers all of the migratory birds listed by the treaties, each treaty does not list all of the migratory birds covered by the MBTA.” Id. (citation omitted). “If the court were to interpret each of the treaties to apply to all birds covered by the MBTA ... the court in effect would be multilateralizing the U.S.’ bilateral treaty obligations. The court declines the plaintiffs’ invitation to unilaterally redefine this nation’s international commitments.” Id. at 39 n. 13. I find the Williams rationale persuasive. Applying the text of a convention that is not, by its terms, applicable to a particular species, would transplant protections or limitations from one treaty to another in ways that were not anticipated by the signatories. Plaintiffs cite Alaska Fish and Wildlife Federation & Outdoor Council v. Dunkle, 829 F.2d 933, 938, 941 (9th Cir.1987), cert. denied, 485 U.S. 988, 108 S.Ct. 1290, 99 L.Ed.2d 501 (1988), for the principle that the PRDO must be compatible with all four migratory bird conventions. In Dunkle, all four treaties governed the migratory birds in dispute. Id. at 941. Hence, Alaska Fish and Wildlife Federation is distinguishable from the present action. Accordingly, I evaluate the PRDO for compatibility only as to conventions that protect the cormorant. I have examined each of the four conventions, and the only convention that applies to the cormorant by name is the U.S.Mexico convention. Convention for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, U.S.-Mex., 50 Stat. 1311 (as amended by exchange of notes dated Mar. 10, 1972). The Notice of the Final Rule cites to the convention with Mexico in asserting the PRDO’s compliance with applicable conventions. 68 Fed. Reg. at 58,023. Plaintiffs argue that the PRDO violates the U.S.-Mexieo treaty because the treaty requires “[t]he establishment of close seasons” for the taking of protected birds, and the PRDO does not provide for a close season. Convention for the Protection of Migratory Birds, Feb. 7, 1936, U.S.Mex., 50 Stat. 1311, 1312, Art. 11(A). Article 11(A) reads in full: The high contracting parties agree to establish laws, regulations and provisions to satisfy the need set forth in the preceding Article, including: A) The establishment of close seasons, which will prohibit in certain periods of the year the taking of migratory birds, their nests or eggs, as well as their transportation or sale, alive or dead, their products or parts, except when proceeding, with appropriate authorization, from private game farms or when used for scientific purposes, for propagation or for museums. Article I states: In order that the species may not be exterminated, the high contracting parties declare that it is right and proper to protect birds denominated as migratory, whatever may be their origin, which in their movements live temporarily in the United States of America and the United Mexican States, by means of adequate methods which will permit, in so far as the respective high contracting parties may see fit, the utilization of said birds rationally for purpose of sport, food, commerce and industry. Article IV of the Convention lists protected birds, dividing them between game birds and non-game birds. The cormorant family was not included as a protected bird under the original 1964 Convention, but was added pursuant to 1972 amendments. The 1972 amendments did not distinguish between game and non-game migratory birds, and, prior to listing the 32 species to be protected by the supplemental agreement, merely stated that “the following additions be made to the list of birds set forth in Article IV of the Convention.... ” Convention for the Protection of Migratory Birds, Feb. 7, 1936, U.S.-Mex., 50 Stat. 1311, 1312. There is no dispute between the parties that the double-crested cormorant is not a game bird. (Plaintiffs’ 56.1 ¶ 1; Defendants’ 56.1 at 10) In the defendants’ view, the phrases “close season” or “closed season” is a term of art that exclusively refers to game hunting. For instance, a separate regulation issued by the FWS, 50 C.F.R. § 20.11(b)(2), defines “closed season” as “the days on which migratory game birds shall not be taken.” (emphasis added) In support of this proposition, the defendants cite to dictionaries that define a “closed season” as a term of art specific to game hunting. Random House Dictionary of the English Language, at 389 (2d ed.1987) (closed season is “a period usually for a specific part of the year during which angling or hunting for a given species is legally prohibited.”); WebsteR’s Third Int’l Dictionary of the English Language, at 427 (1971) (“closed” defined as “restricted with respect to time or place for taking game.”); New Standard Dictionary of the English Language, at 504 (rev’d ed.1963) (close season defined as “that part of the year in which it is unlawful to catch or kill specified varieties of fish and game.”); see also The Oxford English Dictionary Vol. III, at 344 (2d ed.1989) (close season defined as “closed for the purposes of sport; during which the killing of certain kinds of game or fish is illegal.”). The word choice of “close season” implies that there must also be an “open season” during which the taking of birds is permissible. If “close season” applied to all birds protected under the convention, then, by extension, all birds would be subject to an open season, even, conceivably, those species designated as endangered. The Agency’s interpretation of Article 11(A), that it applies to fewer than all migratory birds covered by the Convention, is consistent with the other subdivisions of Article II. Certain subdivisions appear to apply to all species, such as the prohibition of hunting from aircraft. Article 11(F). Other divisions, however, could not logically apply to all species. Article 11(D) establishes a close season for wild ducks, extending from March 10 to September 1. Article 11(E) conditionally bans killing migratory insectivorous birds. Article 11(C), like Article 11(A), is written in broad terms that may have been intended, in fact, to apply to fewer than all migratory birds. Article 11(C) establishes a “limitation to their hunting to four months in each year, as a maximum, under permits issued by the respective authorities in each ease.” The subdivisions of Article II are not precisely parallel. One or more clearly applies to all migratory birds, while some articles apply to a subset. Article IV of the Convention carefully distinguishes game birds and non-game birds, but then does not expressly distinguish the protections afforded to the two categories. This is consistent with an interpretation that the signatories understood that the distinction was implied in other portions of the Convention. True, the 1972 amendments, which included the cormorant, did not identify which of the newly added species were game birds and which were not. But that do not evince an intention to abandon a distinction between the two categories. As one commentary has observed, the U.S.-Mexico Convention, and, specifically, Article 11(A), is not a model of clarity. Michael J. Bean & Melanie J. Rowland, The Evolution of National Wildlife Law, at 66 n. 19 (3d ed.1997). “The Mexican Convention is quite inartfully drafted insofar as the establishment of closed seasons is concerned.... The ambiguity arises from [Ajrticle IV, however, which lumps all migratory birds into only two categories: migratory game birds and migratory nongame birds. If the latter grouping was intended to include any birds other than ‘migratory insectivorous birds,’ then the Convention fails to indicate what closed or open seasons are to apply to such other birds.” Id. Cf. Omar N. White, The Endangered Species Act’s Precarious Perch: A Constitutional Analysis Under the Commerce Clause and the Treaty Power, 27 Ecology L.Q. 215, 227 n. 72 (2000) (“The treaty with Mexico offers more protections allowing for the establishment of closed seasons for hunting game birds, including taking prohibitions and an absolute prohibition of the killing of insectivorous birds.”) (citing Articles 11(A), 11(E)) (emphasis added). The U.S.-Mexico Convention contrasts with the Article 11(2) of the U.S.-Canada Convention, which distinguishes closed seasons on the hunting of migratory game birds as opposed to other protected birds. In this context, the term “close season” either could be a term of art reserved for game birds,' or it could mean a period of time when the taking of any bird (game or non-game) is prohibited. The Agency’s interpretation that “close season” is a term of art applicable to game birds — of which the cormorant is not one — is a reasonable interpretation of the Convention. It is consistent with usage of the term as defined in popular dictionaries and at least one Agency regulation, albeit one adopted in a different context. 50 C.F.R. § 20.11(b)(2). Faced with two opposing constructions of Article 11(A), I consider the deference traditionally owed to the executive branch in interpreting an international treaty. The MBTA authorizes and directs the Secretary of the Interior to interpret the Conventions. 16 U.S.C. §§ 704(a), 712(2). Although the executive branch’s interpretation of a treaty does not warrant deference when that interpretation conflicts with a treaty’s clear language or purpose, United States v. Alvarez-Machain, 504 U.S. 655, 687 n. 35, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (collecting cases) (Stevens, J., dissenting), federal courts “owe respect to the views of the Executive Branch in regard to the meaning of an international treaty,” provided that the interpretation is reasonable. Ehrlich v. American Airlines, Inc., 360 F.3d 366, 399 (2d Cir.2004); accord El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (“Respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty.”); Collins v. Nat’l Transp. Safety Bd., 351 F.3d 1246, 1251 (D.C.Cir.2003) (“[C]ourts should give great weight to the views of those executive agencies charged with enforcing particular treaties.”). Article 11(A) and its use of the term “close season” are ambiguous. The text of the Convention does not allow me to conclude whether Article 11(A) applies to all migratory birds protected by that Convention, or exclusively to migratory game birds. In the absence of express guidance from the Convention or Congress, I accept as reasonable the FWS’s interpretation that Article 11(A) governs the taking of migratory game birds only. As such, the PRDO, which allows the year-round taking of double-crested cormorants, does not violate the U.S.-Mexico Convention. C. The Agency Was Not Arbitrary and Capricious in Adopting the Order The next relevant consideration is whether the FWS adopted the PRDO in an arbitrary and capricious manner. Chevron, 467 U.S. at 844, 104 S.Ct. 2778. “In all cases, agency action must be set aside if the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ or if the action failed to meet statutory, procedural, or constitutional requirements.” Overton Park, 401 U.S. at 413-14, 91 S.Ct. 814 (quoting 5 U.S.C. §§ 706(2)(A-D)). Decisions are “entitled to a presumption of regularity ... [b]ut that presumption is not to shield [the] action from a thorough, probing, in-depth review.” Id. at 415, 91 S.Ct. 814 (internal citation omitted). “[T]he ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Id. at 416, 91 S.Ct. 814. “[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). Any findings of fact by an agency must be supported by substantial evidence, a standard that “ ‘has been construed to mean less than a preponderance but more than a scintilla.’ ” Cellular Phone Taskforce v. F.C.C., 205 F.3d 82, 89 (2d Cir.2000) (quoting Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir.1999)), reh. denied, 217 F.3d 72 (2d Cir.2000), cert. denied, 531 U.S. 1070, 121 S.Ct. 758, 148 L.Ed.2d 661 (2001). “The reviewing court must take into account contradictory evidence in the record, but the ‘possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ ” American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 523, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981) (quoting Consolo v. FMC, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)). When an agency makes a decision in the midst of disputed technical facts, courts must be reluctant to reverse an agency determination supported by considered and articulated expert opinion. Cellular Phone Taskforce, 205 F.3d at 89 (citing Federal Power Comm’n v. Florida Power & Light Co., 404 U.S. 453, 465, 92 S.Ct. 637, 30 L.Ed.2d 600 (1972)). “The agency’s action should only be set aside where it relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the products of expertise.” Id. at 89-90. In contending that the defendants were arbitrary and capricious in adopting the PRDO, plaintiffs argue that, contrary to the PRDO’s stated purpose at 50 C.F.R. 21.48(a), there were no facts in the administrative record showing that the double-crested cormorants adversely impacted public resources. Second, plaintiffs argue that the FWS has failed to articulate why its PRDO reflects “the most rational choice” for achieving its objectives under the MBTA. (Plaintiffs’ Mem. at 32) Third, the plaintiffs contend that the FWS failed to adhere to the Agency’s own implementing regulations in adopting both the PRDO and the ADO. I address each of these arguments in turn. 1. The Record Supported the Conclusion that the Double-Crested Cormorant Adversely Affects Public Resources As stated at 50 C.F.R. § 21.48(a), “[t]he purpose of this depredation order is to reduce the occurrence and/or minimize the risk of adverse impacts to public resources (fish, wildlife, plants, and their habitats) caused by double-crested cormorants.” According to the plaintiffs, it is “stated repeatedly throughout the Record” that cormorants do not impact public resources. (Plaintiffs’ Mem. at 32) The administrative record as to double-crested cormorants’ effect on public resources reflects a vigorous difference of opinion between well-informed experts. For instance, a memorandum authored by the regional director of the Fish and Wildlife Service Region 2, an area that includes Albuquerque, New Mexico, argued that the Final Environmental Impact Statement endorsing the PRDO was “not the best way to handle localized depredation problems,” and that increased local damage control would work more effectively in Region 2. (FWS at 2717, attached at Plaintiffs’ Ex. 6) The memo contends that the FWS should further study how the PRDO would affect the taking of other birds, and that the PRDO did not adequately address the cormorants’ economic effects on federal and Native American fish hatcheries. (FWS' at 2718) Plaintiffs also point to a memorandum authored by the regional director of the Fish and Wildlife Service Region 6, an area including Denver, Colorado. (FWS at 5237-40) That memorandum argued, inter alia: The scope of the actions, given the lack of substantial information on the impacts of [the double-crested cormorant] on the affected environment, need [sic] to be revisited. With the possible exception of aquaculture interests, the need for wide-scale management is generally not supported by the available data. Range-wide negative effects of [the double-crested cormorant] on vegetation, other bird species, water quality, human health and safety, threatened and endangered species, sport, recreational and commercial fisheries, local recreational fishing based economies, and property losses have not been confirmed by our data. The initiation of night time roost site control under the [PRDO] increases the chance of take of “look alike species”. (FWS at 5237-38) The Region 6 memorandum also observed that there was an absence of public support for adopting the PRDO, and that “[a]n overwhelming majority of responses gathered during the official public comment periods were against the proposed rule.... ” (FWS at 5238-39) Criticism Of the methods adopted in the PRDO also arose within the FWS’s Cormorant Team. One internal ' e-mail criticized the Draft EIS for not including sufficient analysis of the biological and economic effects experienced by fisheries. (FWS at 11189) Another e-mail within the Team criticized the proposed PRDO for failing to adequately evaluate the link between managing the double-crested cormorant population and the bird’s effect on fish populations, including fisheries. (FWS at 11204-05) Outside persons and entities also disputed the FWS’s assessments as to the environmental impact of the double-crested cormorants. A letter on behalf of the American Ornithologists’ Union argued that a predation order would place too much weight on the complaints of aquaculture and hatcheries, problems that could be addressed by redesigning facilities. (FWS at 3356-58) A separate letter from three Alabama environmental groups contended that, contrary to the FWS’s stated goal of enhancing the populations of other species, the PRDO would lead to adverse effects on other bird populations. (FWS at 3337) Great Lakes water bird biologists Linda Wire and Francine Cuthbert also submitted a memorandum opposing the proposed rule because, inter alia, it threatened the populations of other bird species, and categorized as “depredation” certain “basic components of most fish-eating bird activity.” (FWS at 6260-6269) The FWS acknowledged the existence of disputed facts as to the double-crested cormorant, but also set forth evidence supporting the PRDO’s necessity.' In the Final Environmental Impact Statement, the FWS noted the widely varying effect that the double-crested cormorant had on fish populations; For instance, in one study conducted in a Wyoming river, the percentage of sport and commercial fish in the double-crested cormorants’ diets varied widely, from 0.6 percent to 93 percent. (FWS at 5544) The FWS found that: (1) [double-crested cormorants] are generalist predators whose diet varies considerably between seasons and locations and tends to reflect species composition; (2) The present composition of cormorant diet appears to have been strongly influenced by human-induced changes in the natural balance of fish stocks; (3) “Impact” can occur at different scales, such that ecological effects on fish populations are not necessarily the same as effects on recreational or commercial catches, or vice versa; (4) Cormorant impact is generally most significant in artificial, highly managed situations; and (5) Because environmental and other conditions vary locally, the degree of conflicts with cormorants will vary locally. (FWS at 5544-45) Research conducted at New York’s Oneida Lake and at Lake Ontario also found that cormorant predation “is likely a significant source of fish mortality” at these locations, and was negatively affecting recreational ca