ALL ABOUT MUTE SWANS AND OTHER NON-NATIVE BIRD SPECIES

Background
OC Comments on draft environmental assessment (.pdf file)

Pending changes to list of species excluded from MBTA protection (.pdf file)
OC Comments on proposed changes (.pdf file)
Final changes to list of species excluded from MBTA protection (.pdf file)

Update 15 March 2005: The final list of species of species excluded from MBTA protection, pursuant to the definitions established by the Migratory Bird Treaty Reform Act, was published today in the Federal Register.

Update 17 January 2005: Legislation introduced earlier in the 108th Congress by Congressman Wayne Gilchrest (R-MD) to amend the Migratory Bird Treaty Act (MBTA) to exclude non-native species became law when the text of the bill was rolled into the Omnibus Appropriations Act, which President Bush on 9 December 2004 signed into law. The legislation does not directly remove Mute Swans or other non-natives; it simply directs the U.S. Fish and Wildlife Service to promulgate regulations about what species are or are not protected, using definitions of "native " and "non-native" that are consistent with those established in the invasive species Executive Order issued by President Clinton (E.O.13112, signed 3 February 1999).

The statutory standards are as follows:

(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.'

On 4 January 2005, the U.S. Fish and Wildlife Service published the proposed list (.pdf file) of species that, under this standard, would not be protected. The notice also explains the criteria used to determine if a species will be listed on the MBTA or excluded from the MBTA.

Comments were due by 3 February 2005.

Background

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

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

The federal appeals court (U.S. Court of Appeals for the D.C. Circuit) ruled on 28 December 2001 that Mute Swans in Maryland and 12 other states (The Court of Appeals for the D.C. Circuit has jurisdiction over federal agencies; the states in question are those with Mute Swan populations) must be protected under federal law. The court reasoned that the Canada treaty includes ducks, swans, and geese and makes no exception for non-native species of these or any other taxa. The three-judge panel said it was "plain" that mute swans are swans, and therefore must be protected under the federal act. In addition, the court found no support in U.S. law (statutes or regulations) for excluding non-native species.

The full decision can be found at: http://pacer.cadc.uscourts.gov/common/opinions/200112/00-5432a.txt

Because the court had conferred federal protection on Mute Swans, the states needed federal Migratory Bird Treaty Act permits in order to legally reduce Mute Swan populations.

In June 2003, the U.S. Fish and Wildlife Service issued a Draft Environmental Assessment, proposing to allow states to reduce the mute swan population in the Atlantic Flyway and to maintain the population at lower levels. The Assessment determined that the reduction of the swan population would not have a signficant environmental impact, and so the USFWS proposed to allow the States to initiate their proposed population reduction activities.

The swan supporters went back to court, challenging the Draft Environmental Assessment and claiming that a full Environmental Impact Statement was required. A federal court issued temporary injunctions in two separate lawsuits filed by animal rights organizations.In response, the U.S. Fish and Wildlife Service on 18 September 2003 agreed to put the management plan on hold. A spokesman for the Fish and Wildlife Service, said Sullivan's ruling left the agency little choice but to suspend efforts to control the swan population. "He advised the service that we wouldn't win fighting this in court and the best option would be to drop it," he said. "It has been challenged in court, and we are going to follow the law." The U.S. Fish and Wildlife Service said permits could be reissued after an environmental impact study is completed, a process that often takes several years.

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