[mou] Mute Swans, lawsuits, Congressional action

[Jim Williams]

This is a long summary of the Mute Swan controversy, a fight that moved 
all the way to Congress. It comes from the  Ornithological Council.

From: Ellen Paul <ellen.paul@verizon.net>
Date: December 9, 2004 12:52:25 PM CST
To: ORNITH-L@LISTSERV.UARK.EDU
Subject: Migratory Bird Treaty Act reform legislation enacted [aka 
"Mute Swans, Round 72]

Regular readers of this listserv will remember that:

1. Various states, mostly in the Northeast, wanted to reduce or
eliminate Mute Swan populations.

2. The U.S. Fish and Wildlife Service took the position that because
Mute Swans were non-native, they were not protected under the Migratory
Bird Treaty Act, and thus, the USFWS had no jurisdiction over any
actions the States might take, and that the States were not required to
obtain Migratory Bird Treaty Act permits to control Mute Swan 
populations.

3. Some individuals and groups who wanted to protect Mute Swans took
exception to the USFWS stance and filed suit in federal court.

4. They won (i.e., the court ruled that the USFWS has to protect Mute
Swans. In fact, the ruling could be interpreted to mean that the USFWS
had to protect all non-native species.

5. The USFWS then did an Environmental Assessment and issued a Finding
of No Significant Impact in support of its intent to issue permits to
the States to control Mute Swan populations.

6. The we-love-swans groups went back to court, insisting that a full
Environmental Impact Statement should have been done. The court didn't
rule, but so strongly hinted to the USFWS that it would in fact rule
that way that the USFWS withdrew the EA/FONSI and did not issue the
permits. The USFWS is now working on the Environmental Impact Statement.

7. Congressman Wayne Gilchrest (R-MD) introduced legislation to amend
the Migratory Bird Treaty Act to allow the USFWS to exclude non-native
species.
The bill - HR 4114 - sailed through the House Resources Committee and
was put on the Union Calendar (a "fast-track" voting procedure that
basically is yes/no, no amendments allowed, minimal discussion - Union
Calendar is used for bills that they think will sail through). However,
it stalled in the Senate Environment and Public Works Committee.

8. Proponents were able to get it tacked onto the omnibus appropiationss
bill signed yesterday by the President, so it is a done deal. It does
not directly remove Mute Swans or other non-natives; it simpy directs
the USFWS to promulgate regulations about what is/is not protected. See
full text below.

9. This may not be the final chapter. The USFWS lost the original
litigation for two reasons:

a) Failure of the USFWS to articulate criteria, in the proper manner,
for what should or should not be listed. In the absence of a priori
criteria, decisions are said to be arbitrary and/or capricious.
Regulatory agencies are not supposed to make arbitrary or capricious
decisions. Furthermore, even if they have developed criteria, the law
requires that regulatory agencies provide an opportunity for public
input on such policies by publishing the proposed policies for comment
and taking the comments into consideration before issuing a final
policy. This legislation directs the USFWS to take the measures mandated
by law, and establishes the criteria for the USFWS to follow (and
presumably, incorporate into the regulations).

b) The Court said that because the Canada treaty includes "ducks, swans,
and geese," all swans had to be protected. Treaties are higher
authorities than statutes, and statutes are higher authority than
regulations. Regulations have to be consistent with the higher
authorities. It isn't just a matter of following proper procedure (e.g.,
promulgating the regulation in the proper way and establishing criteria
so that listing decisions are not made in an arbitrary and capricious
manner). The criteria also have to be consistent with the higher
authorities. A regulation excluding Mute Swans might be consistent with
the Migratory Bird Treaty Act (which is silent on the issue) but would,
under this Court's ruling, be inconsistent with the treaty with Canada.

Those who support the principles upon which this legislation is premised
may wish to consider supporting the two organizations primarily
responsible for making it happen: National Audubon Society
(http://www.audubon.org) and American Bird Conservancy
(http://abcbirds.org).

Ellen Paul
Executive Director
The Ornithological Council
"Providing Scientific Information about Birds"