[mou] Proposed list of non-protected bird species (1 of 2) long

[Jim Williams]

Forward by Jim Williams, Wayzata, Minnesota

Begin forwarded message:

From: Ellen Paul <ellen.paul@verizon.net>
Date: January 4, 2005 3:57:19 PM CST
To: ORNITH-L@LISTSERV.UARK.EDU
Subject: Proposed list of bird species to be EXCLUDED from MBTA 
protection

Published in the Federal Register today (4 January 2005), pursuant to
legislative mandate: the USFWS proposed list of bird species to be
EXCLUDED under the Migratory Bird Treaty Act.

The legislative mandate is that provision of the FY2005 Omnibus
Appropriations Act that incorporates what was HR4114, a bill introduced
by Wayne Gilchrest (R-MD) to amend the Migratory Bird Treaty Act so as
to exclude non-native species. That legislation directed the USFWS to
publish "Not later than 90 days after the date of enactment of this
section....a list of all nonnative, human-introduced bird species to
which the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) does not
apply." Said legislation in turn being a response to the decision of a
federal appellate court that under the terms of the Migratory Bird
Treaty with Canada and in the absence of regulation by the USFWS to the
contrary, Mute Swans could not be excluded from MBTA protection. The
Congress responded by amending the MBTA to provide that:

(1) IN GENERAL- This Act applies only to migratory bird species that are
native to the United States or its territories.
(2) NATIVE TO THE UNITED STATES DEFINED
(A) IN GENERAL- Subject to subparagraph (B), in this subsection the term
`native to the United States or its territories' means occurring in the
United States or its territories as the result of natural biological or
ecological processes.
(B) TREATMENT OF INTRODUCED SPECIES- For purposes of paragraph (1), 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 unless--
(i) it was native to the United States or its territories and extant in
1918;
(ii) it was extirpated after 1918 throughout its range in the United
States and its territories; and
(iii) after such extirpation, it was reintroduced in the United States
or its territories as a part of a program carried out by a Federal
agency.'.

[Federal Register: January 4, 2005 (Volume 70, Number 2)]
[Notices]
[Page 372-377]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Draft List of Bird Species to Which the Migratory Bird Treaty Act
Does Not Apply

SUMMARY: We are publishing a draft list of the nonnative bird species
that have been introduced by humans into the United States or its
territories and to which the Migratory Bird Treaty Act (MBTA) does not
apply. This action is required by the Migratory Bird Treaty Reform Act
(MBTRA) of 2004. The MBTRA amends the MBTA by stating that it applies
only to migratory bird species that are native to the United States or
its territories, and that a native migratory bird is one that is
present as a result of natural biological or ecological processes. This
notice identifies those species that are not protected by the MBTA,
even though they belong to biological families referred to in treaties
that the MBTA implements, as their presence in the United States and
its territories is solely the result of intentional or unintentional
human-assisted introductions.

    The purpose of this notice is to provide the public with an
opportunity to review and comment on a draft list of ``all nonnative,
human-introduced bird species to which the Migratory Bird Treaty Act
(16 U.S.C. 703 et seq.) does not apply that belong to biological
families of migratory birds covered under any of the migratory bird
conventions with Great Britain (for Canada), Mexico, Russia, or
Japan.'' The MBTRA of 2004 requires us to publish this list for public
comment.
    This notice is strictly informational.

What Criteria Did We Use To Identify Bird Species Not Protected by the
MBTA?

    In accordance with the language of the MBTRA, each of the species
enumerated below meet the following four criteria:
    (1) It belongs to a family of birds covered by the MBTA by virtue
of that family's inclusion in any of the migratory bird conventions
with Canada, Mexico, Russia, or Japan. The Canadian and Mexican
treaties list the families of birds that are protected. In the Russian
treaty, the specific species covered are listed in an Appendix in which
the species are arranged by family. Article VIII of the Russian treaty
grants us the authority to use our discretion to protect additional
species that belong to the same family as a species listed in the
Appendix. The treaty with Japan lists covered species in an Annex
without reference to families, and contains no provision that would
allow treaty parties to unilaterally add additional species.
    (2) There is credible documented evidence that it has occurred at
least once in an unconfined state in the United States or its
territories.
    (3) All of its known occurrences in the United States can be
confidently attributed solely to intentional or unintentional human-
assisted introductions to the wild. An intentional introduction is one
that was purposeful-for example, the person(s) or institution(s)
involved intended for it to happen. An unintentional introduction is
one that was unforeseen or unintended-for example, the establishment of 
self-sustaining populations following repeated escapes from captive 
facilities. Self-sustaining populations are able to maintain their 
viability from one generation to the next through natural reproduction 
without the introduction of additional individuals. In this context, we 
consider landscape changes caused by agriculture and other forms of 
human development to be natural ecological processes. These activities 
may make the environment more amenable for some species that did not
historically occur in the United States or its territories and allow
them to expand their ranges and colonize these jurisdictions. In the
absence of direct human intervention, these new arrivals (e.g., cattle
egrets) are considered to be native.
    (4) There is no credible evidence of its natural occurrence in the
United States unaided by direct or indirect human assistance. The
native range and known migratory movements (if any) of the species
combine to make such occurrence in the United States extremely
unlikely, both historically and in the future. Migratory bird species
with credible evidence of natural occurrence anywhere in the United
States or its territories, even if introduced elsewhere within these
jurisdictions, are listed in 50 CFR 10.13.

What Is the Status of Bird Species Not Protected by the MBTA?

    Each species meeting the criteria discussed in the previous
section--and thus qualifying as a nonnative, human-assisted species--
can be grouped into one or more of the following eight status
categories according to the circumstances surrounding its reported
occurrence(s) in the United States or its territories. These categories
are merely informational and descriptive in nature and have no bearing
on determining whether or not a species is nonnative:
    (1) Self-sustaining and free-living breeding populations currently
exist as a consequence of intentional or unintentional introductions.
    (2) Self-sustaining and free-living populations were at one time
thought to be established as a consequence of intentional or
unintentional introductions, but it is now extirpated (i.e., no longer
exists) as a breeding species. Recurring escapes of this species from
captive facilities remain a possibility.
    (3) It has been introduced and possibly established in the wild
(i.e., breeding documented), but some uncertainty remains as to whether
self-sustaining populations have been permanently established.
    (4) Individuals frequently escape from captive facilities such as
zoos, farms, parks, and private collections, where they are common, and
may be found in an unconfined state virtually anywhere in the country,
but not known to breed in the wild.
    (5) Individuals are housed in captive facilities, but escapes are
rare, as judged by the low frequency with which they are reported in
the wild. Most of these species are represented by five or fewer
documented reports of occurrence in the wild, but future escapes are
likely.
    (6) It was intentionally introduced with the goal of establishing
self-sustaining populations, but the release(s) ultimately failed and
it no longer occurs in the country. Future introductions are possible.
    (7) It is imported by private citizens for use in recreational
falconry or bird control at airports, with individual free-flying birds
known to escape from their handlers with some regularity.
    (8) It has occurred as a result of intentional or unintentional
human assistance, but all such occurrences pre-date enactment of MBTA
protection for the family to which it belongs. Although not currently
known to occur, future introductions are possible.

What About the Mute Swan?

    The Fish and Wildlife Service has traditionally excluded nonnative
species from the list of migratory birds (50 CFR 10.13) protected by
the MBTA. Among the nonnative species listed above, the mute swan was
the only species that the Service treated as being protected by the
MBTA prior to passage of the MBTRA. In December 2001, the United States
Court of Appeals for the District of Columbia Circuit ruled that the
Canadian and Mexican conventions appeared to apply to mute swans and
invalidated the Service's list of species covered by the MBTA to the
extent that it excluded mute swans (Hill v. Norton, 275 F.3d 98 (D.C.
Cir. 2001)). In December 2003, the mute swan was the major focus of
discussion by the seven panel members who presented testimony at a
congressional oversight field hearing on exotic bird species and the
MBTA conducted by the House Committee on Resources (2003). The major
sponsor of the MBTRA succinctly outlined the benefits of excluding
nonnative species, including mute swans, from protection of the MBTA
(Gilchrest 2004). In separate committee reports, the U.S. House of
Representatives (2004) and the U.S. Senate (2004) clearly expressed
their views that the mute swan was nonnative and therefore anticipated
that the MBTRA would clarify that the mute swan would not be protected
by the MBTA. In fact, Congress's view on the nonnative status of the
mute swan is strongly supported by the evidence and the consensus of
scientific opinion (American Ornithologists' Union 1931, 1957, 1983,
1998; Ciaranca et al. 1997; Johnsgard 1975; Kortright 1942; Long 1981;
Palmer 1976; Scott and Wildlife Trust 1972; Sibley and Monroe 1990;
Wilmore 1974).
    For example, there is no mention of mute swans in the extensive
popular and scientific literature on North American birds until 1915,
and that is a reference (Job 1915) to successful breeding of the
species in captivity in the United States. Forbush (1916) provided the
first report of unconfined mute swans in the United States, noting that
``many reports of swans seen near Boston followed soon after the escape
of European mute swans from the Boston park system.'' All existing
populations of the mute swan in North America are derived from
introduced stocks that were released or escaped at different localities
and in different years and eventually established feral populations.
    North Atlantic: Bump's (1941) reference to the presence of mute
swans in New York State ``prior to 1900'' almost certainly applied to
captive or restrained (i.e., wing-clipped or pinioned) birds imported
to ``private estates'' on Long Island and along the lower Hudson River
(contra Long 1981). Bull (1974) provides more details on the
establishment of ``wild'' populations, noting that birds were
``introduced in 1910 into southeastern New York in the lower Hudson
[River] valley * * * and in 1912 on the south shore of Long Island.''
These introductions involved a total of 216 birds in 1910 and 328 birds
in 1912 (Long 1981). An unrestrained feral flock in the lower Hudson
River had grown to 26 individuals by 1920 or 1921 (Crosby 1922, Cooke
and Knappen 1941). From this nucleus, birds gradually colonized
surrounding States in the North Atlantic, with breeding first reported
in New Jersey in 1932 (Urner 1932), Rhode Island in 1948 (Willey and
Halla 1972), Connecticut in the late 1950's to 1960's (Zeranski and
Baptist 1990, Bevier 1994), Massachusetts prior to 1965 (Veit and
Petersen 1993), and New Hampshire in 1968 (Foss 1994).
    Mid-Atlantic: While mute swans were reported in Maryland as early
as 1954, the resident breeding population in the Maryland portion of
the Chesapeake Bay has been traced directly to the escape of three
males and two females into Eastern Bay from waterfront estates along
the Miles River in Talbot County during a storm in March 1962 (Reese
1969, 1975; Robbins 1996). Mute swans were first reported in Virginia 
beginning in 1955, mostly as captive birds in waterfowl collections, 
although some were probably released into the wild. A feral breeding 
population was not thought to be present until the late 1960's or early 
1970's (Kain 1987). The origin of the small Delaware population, where 
birds were first noted in 1954 and nesting in 1965 (Hess et al. 2000) 
is unclear: it could represent birds that moved south from the North 
Atlantic, north from the Chesapeake Bay, or an independent 
introduction.
    Great Lakes: In Michigan, a northern flock of mute swans was
established following an introduction near East Jordan, Charlevoix
County, in 1919; this was followed by the establishment of a southern
flock derived mostly from introductions in Kalamazoo and Oakland
counties (Brewer et al. 1991). Elsewhere in the Great Lakes region,
successful nesting of feral mute swans--most likely representing birds
dispersing from the sizeable Michigan flocks--was first documented in
Indiana in the 1970's (Keller et al. 1986, Castrale et al. 1998), in
Wisconsin in 1975 (Robbins 1991), in Ohio in 1987 (Peterjohn and Rice
1991), and in Illinois since at least 1986 (Kleen 1998).
    Pacific Northwest: This is the least well-established and stable of
the four principle mute swan population centers in the United States.
Mute swans have escaped or been introduced to the wild in Oregon on
multiple occasions. Breeding was first noted in the 1920's in Lincoln
County (Gilligan et al. 1994, Marshall et al. 2003), with occasional
breeding noted at other localities through the present. In Washington,
a small but growing number of birds thought to represent dispersal from
the introduced British Columbia population has been established in the
Puget Sound lowlands (J. Buchanan, Washington Department of Fish and
Wildlife, pers. comm.).
    In the past, advocates of Federal protection for the mute swan have
taken the position that the mute swan is in fact native to the United
States. In support of this view, they have presented three pieces of
evidence: (1) Alleged fossil remains, (2) purported descriptions and
depictions in historical literature such as Hariott's (1590) ``A briefe
and true report of the new found land of Virginia'' of mute swans in
the Chesapeake Bay in the 1500's, and (3) a Currier & Ives print dated
1872 and entitled ``The haunts of the wild swan: Carroll Island,
Chesapeake Bay'' that purportedly depicts mute swans.
    The Fossil Evidence: Avian paleontologists have identified fossil
remains of at least three species of swans in North America: Cygnus
buccinator (the trumpeter swan), Cygnus columbianus (the tundra swan),
and Cygnus paloregonus (the purported ancestor of the mute swan). These
fossil remains were found in geological deposits in Idaho and Oregon
(Shufeldt 1913, Brodkorb 1964, Wetmore 1959) dating to the Pleistocene
epoch, a period extending from 11,000 to 1.8 million years ago.
Trumpeter and tundra swans survive as members of the modern North
American avifauna while paloregonus became extinct. Whatever the
relationship of paloregonus to modern-day swans--and Ciaranca et al.
(1997) have suggested that in some physical features it more closely
resembled the mute swan than either the trumpeter or the tundra--it
differed significantly enough for authorities to describe it as a
distinct species. Even if there was (and there isn't) clear and
indisputable evidence that paloregonus was synonymous with olor, thus
possibly representing an early incursion of a population of Cygnus olor
into North America that subsequently became extinct, that evidence
would not obviate the fact that all current populations of the mute
swan in North America are derived from introduced stocks that were
released or escaped and eventually established feral populations.
Therefore, new section 703(b)(2)(B) precludes the mute swan from being
considered a native species.
    Historical Illustrations: Seven of the 23 illustrations in
Harriot's (1590) report on the region now known as Pamlico Sound, North
Carolina, depict waterfowl (ducks, geese, or swans) in the background,
either in flight or on the water. Only one of the plates depicts
anything remotely resembling a swan, and it cannot be assigned with
confidence to a particular species. The only text reference to swans is
the statement that ``in winter great store of swannes and geese''
provided an abundant source of food, suggesting that the swans depicted
are more likely tundra swans, a common winter inhabitant of the region.
Similarly, little credence can be placed in the supposed depiction of
mute swans in a Currier & Ives print. Illustrators and publishers of
the late 1900th century frequently portrayed fanciful depictions of
birds that bore little resemblance to reality. Commercial artwork of
the period often pictured the species with which recent European
immigrants had been familiar in their native land. Nonnative birds were
often inserted in the foreground or background of American landscapes.
We place much greater significance in the fact that neither Alexander
Wilson (1808-1814) nor John James Audubon (1827-1839)--the two most
renowned and respected American wildlife artists and naturalists of the
19th century in America--depicted or described the mute swan in their
seminal works on the birds of North America.

see part two