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 <[email protected]> Date: December 9, 2004 12:52:25 PM CST To: [email protected] 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"
