Lawsuits by animal rights activists arguing for legal protection for Mute Swans: outcomes and resultant legislation
Background: In 1999, the state of Maryland appointed a task force to make recommendations regarding the burgeoning population of Mute Swans in Chesapeake Bay. The primary concern with these birds was the potential impact on submerged aquatic vegetation (SAV) in the Bay. Management options recommended by the task force included egg removal and addling, as well as lethal control. The Maryland Department of Natural Resources (DNR) had the authority to reduce wildlife populations on state property as long as supporting documentation is provided. No public notification was required by law, as non-native species Mute Swans were not (and are not, due to the amendment we will be discussing) offered federal protection by the Migratory Bird Treaty Act (MBTA).
The Migratory Bird Treaty Act (MBTA) The MBTA (U.S. Code [USC] 703-712, Ch. 128; July 13, 1918; 40 stat. 755), enacted by Congress in 1918, authorizes the U.S. Department of Interior, represented by the U.S. Fish & Wildlife Service (USFWS), to regulate the take of migratory game birds that appear in the List of Migratory Birds. The list was not included in the original text of the Act, but beginning in the 1970s, the USFWS periodically published a list of protected species, based on four bird treaties between the U.S. and Mexico, Great Britain (for Canada), Japan, and the USSR. The Act did not or does not offer strict protection of listed birds, but establishes a framework of procedures for obtaining permits for actions that constitute "take" of these birds).
http://www.cadc.uscourts.gov/internet/opinions.nsf/EC408C8410897DE385256F7A0064521E/$file/00-5432a.txt
Hill v. Norton
In an effort to block lethal control measures of Mute Swans proposed in Maryland, a complaint was filed in July 1999 with the U.S. District Court in the District of Columbia by Joyce Hill, a Maryland resident.
Hill was used as a plaintiff in the suit because she had Mute Swans on her property, a reduction in their numbers would reduce the aesthetic enjoyment of her property, and thus she had standing, which the
District Court confirmed.
The complaint claimed that Secretary of the Department of the Interior's (at the time, Gale Norton) failure to include the Mute Swan on the List of Migratory Birds protected under the MBTA was arbitrary and capricious under the Administrative Procedure Act (USC Title 5, Part 1. Ch. 5, Subchapter 2). On these merits, the Court granted summary judgement in favor of the defendants, due to the ambiguity of the treaties and conventions underlying the MBTA.
The suit also claimed that the government was required to provide an Environmental Impact Statement
(EIS), as noted under the National Environmental Policy Act (NEPA). The Court ruled against her on this claim, as she introduced nothing to support her contention that there were any "major Federal actions" that would require the preparation of an EIS.
Appeal
Hill appealed to the U.S. Court of Appeals for the District of Columbia Circuit (275 F.3d 98), wanting to directly address the language of the underlying conventions of the MBTA, based on four different treaties. In its decision in December 2001, the Court found nothing specific in the treaties or statutes to justify excluding the Mute Swan from the list of protected species. There was nothing in the statute regarding relevancy of whether a species is native or non-native. The Court ruled that since at least two of the underlying treaties reference "swans" and the family Anatidae, and Mute Swans are plainly swans and members of Anatidae, that Mute Swans must be protected under the MBTA.
This ruling did not mean Mute Swans could never be controlled by lethal means, only that Maryland (or other states) would have to obtain depredation permits issued by the USFWS.
Interesting Outcome:
Lethal control following the appeal ruling
In 2003, a number of state agencies applied to the USFWS for depredation permits to allow lethal control of Mute Swans.
As issuing the permits could be considered a "major federal action" under the National Environmental
Policy Act (NEPA), a review needed to be conducted. If an action might result in significant environmental impact, an Environmental Impact Statement (EIS) has to be prepared. If the action is not likely to cause significant impact, a shorter document, called an Environmental Assessment (EA) can be prepared; the EA can be used to determine whether or not a full EIS is necessary. If a finding of no significant impact (FONSI) is the result of a review of an EA, no EIS need be prepared, and NEPA analysis ends.
NEPA only requires that prospective impacts of actions be understood and disclosed in advance. That is the function of an EIS or EA. They are not binding documents, and NEPA does not prohibit the actions from harming the environment.
An EA was prepared concerning the issuance of depredation permits for the removal of no more than
3,100 Mute Swans in the Atlantic Flyway in response to a challenge by the Fund for Animals, an animal rights organization, to an earlier permit issuance. The Fund dropped its challenge when Maryland agreed to surrender the permit and prepare an EA. The result of the EA was a FONSI issued by USFWS in
August 2003.
This FONSI was completely logical, as the only significant impact would occur if the swans were not controlled and left to exert their influence on the environment. Later that month, depredation permits were issued.
Fund for Animals v. Norton (281 F.Supp.2d 209, 216 [D.D.C. 2003])
Within days, the Fund for Animals and two citizen plaintiffs filed suit challenging the FONSI, requesting a preliminary injunction to halt the issuance of the permits. The irreparable harm cited by the plaintiffs included decreased opportunities to view swans if some or all were killed. The Court ruled for the plaintiffs, relying on case law that found irreparable harm "even though plaintiffs did not establish that the exact animals they regularly observed would be directly affected by the proposed action" and that even “aesthetic injury based on the mere contemplation of a particular treatment of the animals in question” could be considered irreparable harm. Unfortunately, the defense did not adequately address what harm would be incurred if the injunction was imposed (e.g., if the control measures were delayed).
This also contributed to the finding in favor of the plaintiffs.
The USFWS opted to withdraw their EA, the FONSI, and the depredation permits. Therefore, the Fund dismissed the case.
MBTA amendment (Migratory Bird Treaty Reform Act of 2004)
Meanwhile, it was evident that the MBTA (originally passed in 1918 and last amended in 1976) was in need of clarification to clearly define which birds were protected under the Act and which were not. In
December 2003, a Congressional subcommittee began hearing testimony regarding the MBTA and non-native species, legislation was introduced in April 2004, and it was signed into law later that year.
The MBTA now “applies only to migratory bird species that are native to the United States or its territories” and the term is further defined to mean “occurring in the United States or its territories as the result of natural biological or ecological processes.” It further specifies that “a migratory bird species that occurs in the United States or its territories solely as a result of intentional or unintentional human-assisted introduction shall not be considered native to the United States or its territories." The
USFWS published a final list of bird species to which the MBTA does not apply in March 2005.
Fund for Animals v. Norton II (374 F.Supp.2d 91 [D.D.C.2005)]
In April 2005, the Fund filed suit again, seeking an injunction against the lethal control of swans. The plaintiffs contended that the control was in violation of the MBTA because of ambiguities in the Reform Act of 2004.
The Court denied the injunction. It ruled that "nothing in the Reform Act itself appears ambiguous," and the Reform Act's terms showed "that Congress intended to modify the [Migratory Bird Treaty Act] to exclude nonnative species." The Court added, "Congress clearly has the power to abrogate or modify a treaty or earlier legislation, and when it does so, that is the final word."
Fund for Animals v. Kempthorne [Secretary of the Interior replacing Norton] (2006 WL 3687107
([D.C. Cir. 2006])
In August 2006, the Fund appealed the above ruling. The Court ruled in December 2006 that the MTBA
Reform Act of 2004 modified the act to allow killing of non-native birds, and therefore did not protect Mute Swans.
The Migratory Bird Treaty Act (MBTA) The MBTA (U.S. Code [USC] 703-712, Ch. 128; July 13, 1918; 40 stat. 755), enacted by Congress in 1918, authorizes the U.S. Department of Interior, represented by the U.S. Fish & Wildlife Service (USFWS), to regulate the take of migratory game birds that appear in the List of Migratory Birds. The list was not included in the original text of the Act, but beginning in the 1970s, the USFWS periodically published a list of protected species, based on four bird treaties between the U.S. and Mexico, Great Britain (for Canada), Japan, and the USSR. The Act did not or does not offer strict protection of listed birds, but establishes a framework of procedures for obtaining permits for actions that constitute "take" of these birds).
http://www.cadc.uscourts.gov/internet/opinions.nsf/EC408C8410897DE385256F7A0064521E/$file/00-5432a.txt
Hill v. Norton
In an effort to block lethal control measures of Mute Swans proposed in Maryland, a complaint was filed in July 1999 with the U.S. District Court in the District of Columbia by Joyce Hill, a Maryland resident.
Hill was used as a plaintiff in the suit because she had Mute Swans on her property, a reduction in their numbers would reduce the aesthetic enjoyment of her property, and thus she had standing, which the
District Court confirmed.
The complaint claimed that Secretary of the Department of the Interior's (at the time, Gale Norton) failure to include the Mute Swan on the List of Migratory Birds protected under the MBTA was arbitrary and capricious under the Administrative Procedure Act (USC Title 5, Part 1. Ch. 5, Subchapter 2). On these merits, the Court granted summary judgement in favor of the defendants, due to the ambiguity of the treaties and conventions underlying the MBTA.
The suit also claimed that the government was required to provide an Environmental Impact Statement
(EIS), as noted under the National Environmental Policy Act (NEPA). The Court ruled against her on this claim, as she introduced nothing to support her contention that there were any "major Federal actions" that would require the preparation of an EIS.
Appeal
Hill appealed to the U.S. Court of Appeals for the District of Columbia Circuit (275 F.3d 98), wanting to directly address the language of the underlying conventions of the MBTA, based on four different treaties. In its decision in December 2001, the Court found nothing specific in the treaties or statutes to justify excluding the Mute Swan from the list of protected species. There was nothing in the statute regarding relevancy of whether a species is native or non-native. The Court ruled that since at least two of the underlying treaties reference "swans" and the family Anatidae, and Mute Swans are plainly swans and members of Anatidae, that Mute Swans must be protected under the MBTA.
This ruling did not mean Mute Swans could never be controlled by lethal means, only that Maryland (or other states) would have to obtain depredation permits issued by the USFWS.
Interesting Outcome:
Lethal control following the appeal ruling
In 2003, a number of state agencies applied to the USFWS for depredation permits to allow lethal control of Mute Swans.
As issuing the permits could be considered a "major federal action" under the National Environmental
Policy Act (NEPA), a review needed to be conducted. If an action might result in significant environmental impact, an Environmental Impact Statement (EIS) has to be prepared. If the action is not likely to cause significant impact, a shorter document, called an Environmental Assessment (EA) can be prepared; the EA can be used to determine whether or not a full EIS is necessary. If a finding of no significant impact (FONSI) is the result of a review of an EA, no EIS need be prepared, and NEPA analysis ends.
NEPA only requires that prospective impacts of actions be understood and disclosed in advance. That is the function of an EIS or EA. They are not binding documents, and NEPA does not prohibit the actions from harming the environment.
An EA was prepared concerning the issuance of depredation permits for the removal of no more than
3,100 Mute Swans in the Atlantic Flyway in response to a challenge by the Fund for Animals, an animal rights organization, to an earlier permit issuance. The Fund dropped its challenge when Maryland agreed to surrender the permit and prepare an EA. The result of the EA was a FONSI issued by USFWS in
August 2003.
This FONSI was completely logical, as the only significant impact would occur if the swans were not controlled and left to exert their influence on the environment. Later that month, depredation permits were issued.
Fund for Animals v. Norton (281 F.Supp.2d 209, 216 [D.D.C. 2003])
Within days, the Fund for Animals and two citizen plaintiffs filed suit challenging the FONSI, requesting a preliminary injunction to halt the issuance of the permits. The irreparable harm cited by the plaintiffs included decreased opportunities to view swans if some or all were killed. The Court ruled for the plaintiffs, relying on case law that found irreparable harm "even though plaintiffs did not establish that the exact animals they regularly observed would be directly affected by the proposed action" and that even “aesthetic injury based on the mere contemplation of a particular treatment of the animals in question” could be considered irreparable harm. Unfortunately, the defense did not adequately address what harm would be incurred if the injunction was imposed (e.g., if the control measures were delayed).
This also contributed to the finding in favor of the plaintiffs.
The USFWS opted to withdraw their EA, the FONSI, and the depredation permits. Therefore, the Fund dismissed the case.
MBTA amendment (Migratory Bird Treaty Reform Act of 2004)
Meanwhile, it was evident that the MBTA (originally passed in 1918 and last amended in 1976) was in need of clarification to clearly define which birds were protected under the Act and which were not. In
December 2003, a Congressional subcommittee began hearing testimony regarding the MBTA and non-native species, legislation was introduced in April 2004, and it was signed into law later that year.
The MBTA now “applies only to migratory bird species that are native to the United States or its territories” and the term is further defined to mean “occurring in the United States or its territories as the result of natural biological or ecological processes.” It further specifies that “a migratory bird species that occurs in the United States or its territories solely as a result of intentional or unintentional human-assisted introduction shall not be considered native to the United States or its territories." The
USFWS published a final list of bird species to which the MBTA does not apply in March 2005.
Fund for Animals v. Norton II (374 F.Supp.2d 91 [D.D.C.2005)]
In April 2005, the Fund filed suit again, seeking an injunction against the lethal control of swans. The plaintiffs contended that the control was in violation of the MBTA because of ambiguities in the Reform Act of 2004.
The Court denied the injunction. It ruled that "nothing in the Reform Act itself appears ambiguous," and the Reform Act's terms showed "that Congress intended to modify the [Migratory Bird Treaty Act] to exclude nonnative species." The Court added, "Congress clearly has the power to abrogate or modify a treaty or earlier legislation, and when it does so, that is the final word."
Fund for Animals v. Kempthorne [Secretary of the Interior replacing Norton] (2006 WL 3687107
([D.C. Cir. 2006])
In August 2006, the Fund appealed the above ruling. The Court ruled in December 2006 that the MTBA
Reform Act of 2004 modified the act to allow killing of non-native birds, and therefore did not protect Mute Swans.
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