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Swan Song? Giving a Voice to Mute Swans in the Chesapeake Bay

Michael Markarian and Jonathan R. Lovvorn, Esq.


11 U. Balt. J. Envtl. L. 115 (Spring, 2004)
Publish Date:
Spring, 2004
Place of Publication: University of Baltimore School of Law
Printable Version

Swan Song? Giving a Voice to Mute Swans in the Chesapeake Bay

 

Copyright © 2004 University of Baltimore School of Law; Michael Markarian;

Jonathan R. Lovvorn, Esq. (Reprinted with Permission).

In September 2003, the U.S. Fish and Wildlife Service (USFWS) made the startling announcement that it would withdraw all previously issued permits to kill federally protected mute swans throughout the United States. The announcement came just days after U.S. District Judge Emmet G. Sullivan granted a preliminary injunction requested by The Fund for Animals and several residents of Maryland's Eastern Shore, represented by the Washington, D.C. public interest law firm Meyer & Glitzenstein, to block the Maryland Department of Natural Resources (MDNR) from killing hundreds of swans throughout the Chesapeake Bay.

While The Fund for Animals' lawsuit focused on Maryland swans, the decision by federal officials applied not just to Maryland, but to dozens of permits to kill tens of thousands of mute swans nationwide. The so-called "invasive" mute swans had been under attack for allegedly threatening the underwater grasses in the Chesapeake Bay. That claim lacked scientific merit, but nevertheless made the birds the subject of a controversy pitting humane advocates and Maryland citizens against wildlife agencies and some environmental organizations, a controversy that has had national implications.

MUTE SWANS IN MARYLAND

The mute swan (Cygnus olor) is one of seven species of swan worldwide and a native of Europe and Asia. This large, all-white swan can be recognized by its large orange bill including a prominent black knob at the base, and its curved neck which is held in an S-shape with the bill pointed downward while the bird is swimming. Mute swans *116 are believed to have been first introduced into the U.S. for display on ponds and lakes almost 200 years ago.

Today, a population of approximately 14,000 mute swans can be found spread out in low lying wetland areas of the Atlantic Flyway--the migratory route along the east coast--including a population of approximately 3,600 birds in the state of Maryland. Although Maryland officials have repeatedly referred to mute swans as being "overpopulated," and expressed concerns about the species' allegedly "exploding" population numbers, the total number of mute swans in Maryland has actually decreased by nearly ten percent in the last three years for which data are available--from 3,955 swans in 1999 to 3,624 in 2002. [FN1] Aside from the fact that a declining population cannot reasonably be called "exploding," one need only contrast the small number of mute swans with the other waterfowl populations currently living in Maryland--15,000 tundra swans, 75,000 snow geese, and 400,000 Canada geese--to see that warnings about "exploding" mute swan numbers are at best alarmist and at worst misleading.

Mute swan nesting season runs from early March through May, and begins with the construction of a large nest into which the hen lays a clutch of three to seven eggs. Cygnets are born with a gray downy plumage that eventually turns to white. During the first few months, cygnets are totally dependant upon the parent birds for food, shelter, and protection. In July and August, cygnets will normally join flocks of other non-breeding swans, eventually form a pair bond with a mate, and look for a suitable territory in which to breed. Mute swans have been known to live for more than 25 years. All swans, including mute swans, are protected under the terms of the International Conventions for the Protection of Migratory Birds (Conventions) and the Migratory Bird Treaty Act (MBTA). [FN2]

With increasing human development in recent years, and the corresponding destruction of habitats, mute swans, like other wildlife, have come into more frequent contact with people. During the 1990s, certain Maryland residents began voicing concerns about an increase in "conflicts" with swans due to their "aggressive behavior." [FN3] Citizens also began providing anecdotal complaints that mute swans were overgrazing on "submerged aquatic vegetation" (SAV) in the Chesapeake Bay. SAVs are underwater plant communities that are critical for the proper functioning of the Bay, but which have been severely reduced by agricultural run-off and other pollutants, including the waste run-*117 off from the massive poultry farming industry on Maryland's Eastern Shore--where chickens outnumber people by one thousand to one. [FN4]

In 2002, the MDNR proposed a program to eliminate half of the total mute swan population in Maryland, primarily by shooting individuals and nesting pairs in areas throughout the entire state. Although the MDNR's mute swan management plan stated that killing half the total swan population was necessary for the "protection and restoration of SAV beds," the agency flatly admitted in correspondence that the state had not even finished its ongoing scientific research to "quantify mute swan impacts on SAV in the Chesapeake Bay." [FN5]

In addition, MDNR had repeatedly explained that the birds were having a "negligible" impact on SAV in the bay. [FN6] Thus, MDNR had concluded that "there is no evidence to suggest that mute swans are causing any impact to agriculture in Maryland," that the birds "are not the primary cause of the decline of SAV in the Chesapeake Bay," and that, in fact, the "decline of SAV has been attributed primarily to elevated levels of nutrients and suspended sediments." [FN7] Nonetheless, in April 2003, MDNR decided to go forward with its plans to kill 1,500 mute swans--despite the fact that it was the height of swan nesting season and would surely result in the orphaning and killing of young cygnets.

A THREAT TO THE BAY?

The MDNR claimed it was "joined by mainstream conservation groups that understand the need to reduce the exploding mute swan population" and that only "a small band of wacky fringe groups" trying "to make a buck" were opposing the effort to kill swans. [FN8] It certainly defies logic that some of these "mainstream conservation groups"--such as the American Bird Conservancy and National Audubon Society--would support the wholesale slaughter of a particular species of bird. The esoteric notion that certain species of birds have more aesthetic value than others is arrogant, arbitrary, and scientifically unsubstantiated.

Moreover, it appears that only the "wacky fringe groups" bothered to look into the science. Scientific validation of the claim that mute swans are responsible for anything other than negligible damage to *118 the ecosystem of the Chesapeake Bay is conspicuous in its absence. In fact, a major study recently concluded that the decline in the abundance of SAV beds in the Chesapeake Bay is not a late-20th century occurrence, but has taken place over the last two centuries. [FN9] In addition, there is a paucity of peer-reviewed data that specifically documents the link between the consumption of SAV by mute swans and the decline of SAV beds in the Chesapeake Bay. Moreover, much of the data on which concerns over impacts on SAV are based were generated in Europe, not in the Chesapeake Bay.

For example, the 1983 Fenwick Study, upon which MDNR relied heavily to support the central premise that mute swans are decimating SAV in the Chesapeake Bay, actually studied what mute swans eat when penned up in an area with SAV as the sole food source, to determine which specific plant species mute swans prefer. [FN10] Not surprisingly, where no other food source was available, the birds consume large quantities of SAV. [FN11] This study-- telling us that when you put swans in cages and feed them nothing but large amounts of grass, you can conclude that swans eat grass--might provide useful information for a pet store or the Baltimore Zoo, but simply does not apply to the Chesapeake Bay environment or any other environment that exists outside a cage.

The MDNR points to two species of SAV in particular--sago pondweed and wigeongrass (Ruppia maritima)--as important to "the functioning of wetland ecosystems in North America" due to "their critical role as important food sources for a variety of waterfowl species." However, it is noteworthy that one study relied upon by MDNR has found that waterfowl actually have a beneficial impact on wigeongrass, i.e., by "inducing the development of belowground structures" that "could form a complex interlocking matrix that binds the sediment and retards erosion"--and, indeed, "[t]hese mechanisms of compensatory growth are the principal components of the evolutionary responses of the plant in their coexistence with animals." [FN12]

Moreover, MDNR has continuously failed to evaluate mute swan impacts on a site-specific basis and has instead taken a "one size fits all" approach. This despite the fact that perhaps the leading study on the decline of SAV in the Chesapeake Bay has recommended that "[s]trategies designed to restore SAV must consider the characteristics, including the history, of individual tributaries and their watersheds" *119 and "[w]hat works for one tributary will not necessarily work for all." [FN13] MDNR's global approach of identifying the entire Chesapeake Bay region as being impacted by mute swans, rather than pointing to specific impacts, is also contrary to the recommendations of the agency's own expert, who informed his colleagues that "[w]hen viewed from a bay-wide perspective, the biomass of SAV being consumed by our couple-thousand birds is almost certainly negligible," and "[t]his type of gross analysis makes of lot of assumptions (such as even grazing over the entire bay), and is not a valid way to examine impacts." [FN14]

Furthermore, the Chesapeake Bay Foundation, clearly the leading organization working to save the Bay, recently released an in-depth report noting that sewage treatment plants are the second largest source of nitrogen pollution in the Bay, stimulating population explosions of algae, decreasing water clarity and blocking sunlight from SAVs. [FN15] The same report noted that agriculture is the largest source of nitrogen pollution to the Bay. The organization's "State of the Bay Report 2003" notes that SAVs "have struggled from the stress of increased pollution and sediment delivered by heavy rainwater runoff." [FN16]

Not surprisingly, neither of these reports even makes a cursory mention of mute swans. It is without question that SAVs are crucial to the survival of the Chesapeake Bay ecosystem and to the many species who depend on those underwater grasses for their survival, but it is unclear why the state of Maryland and even some environmental organizations are so eager to place the blame on a tiny population of mute swans. While agriculture is the number one threat to underwater Bay grasses and sewage treatment plants are number two, mute swans probably would not even make a list of the top fifty.

That is, the real threats to the Bay--such as the waste run-off from the chickens raised in intensive confinement every year on the Eastern Shore or the wastewater that goes to sewage treatment plants when millions of people flush their toilets--have nothing to do with swans. Moreover, the MDNR's complaint against the birds is not that they are causing problems now, but that they just might cause problems down the road. The state is managing wildlife by trying to predict the future. It's not scientific--it's voodoo management.

*120 EXPLORING ALTERNATIVES

As the impacts caused by mute swans, if any, are minor and localized at best, those problems should be addressed on an individual site-specific basis, as authorized by the MBTA and the underlying International Conventions for the Protection of Migratory Birds. Instead, the state and federal agencies have repeatedly advocated killing swans at any time and in any location, regardless of when and where local impacts may occur. While it may be psychologically soothing to think that something is being done to save the Bay, state and federal officials should not be given a blank check to shoot hundreds or thousands of mute swans at random, rather than proceeding in the site-specific manner contemplated by U.S. and international law.

Moreover, if there ever is a real need to reduce the mute swan population, such a reduction can be accomplished humanely without shooting and within the legal framework provided by the MBTA and the Conventions. Birth control methods such as "egg addling" can effectively prevent swan eggs from hatching. Leading swan experts even suggest placing the birds into same-sex pairs; because they are monogamous and mate for life, they will remain together and not reproduce. And some Maryland residents and legislators even suggested relocating the mute swans to foreign countries where the birds were wanted. [FN17] In short, there are plenty of alternatives to shooting swans, but the MDNR failed to give the slightest nod to any of them--which led The Fund for Animals and several residents of Maryland's Eastern Shore to file a lawsuit in U.S. District Court for the District of Washington in May 2003. [FN18]

The case challenged a decision by the USFWS to issue a blanket "depredation" permit under the MBTA [FN19] to authorize the state of Maryland to kill up to 1,500 mute swans at any time, and at any location in the state--regardless of whether the conditions at any particular location actually meet the strict requirements for "depredation" under the international Conventions, [FN20] the MBTA, and the USFWS's implementing regulations. [FN21] The lawsuit also alleged that, by effectively writing the state of Maryland a blank check to kill over 1,500 migratory birds--without preparing either an Environmental Impact Statement (EIS) or an Environmental Assessment (EA)--the USFWS also violated the National Environmental Policy Act (NEPA), [FN22] the Council of Environmental Quality's (CEQ) implementing regulations *121 for NEPA, [FN23] and the Administrative Procedure Act (APA). [FN24] To put this case in context, it is important to review the relevant statutory and regulatory framework, as well as the events relating to Maryland's permit to kill mute swans.

PROTECTION OF MIGRATORY BIRDS

The U.S. has entered into several treaties, or Conventions, for the protection of migratory birds. [FN25] Under these Conventions, migratory birds--including "all swans"--may only be killed under certain "extraordinary conditions," i.e., where the birds have "become seriously injurious to the agricultural or other interests in any particular community." [FN26] In 1918, Congress enacted the MBTA for the express purpose of "execut[ing] the [Conventions] to make [them] effective and enforceable by the courts." [FN27] Like the Conventions, the MBTA was intended to provide a comprehensive, uniform system for the protection of both game birds and other bird species from all forms of unauthorized destruction.

Section 703 of the MBTA provides that unless and except as permitted by regulations issued by the Secretary of the Interior, "it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, [and] kill . . . any migratory bird . . . included in the terms of the Conventions . . . ." [FN28] Section 704 of the MBTA authorizes the Secretary of the Interior to promulgate regulations that permit the taking of migratory birds--provided that such regulations are consistent with the terms of the Conventions. [FN29] The issuance of any such regulations must also be based on "the zones of temperature and . . . the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds . . . " [FN30]

Pursuant to section 704 of the MBTA, the USFWS has promulgated regulations authorizing the agency to issue a "depredation permit" that allows for the lawful taking of protected birds. Any such permit must be based upon an application that details the "[l]ocation where the requested permitted activity is to be conducted," [FN31] as well as a "description of the area where depredations are occurring," the "nature of the crops or other interests being injured," the "extent of such injury," and the "particular species of migratory birds committing the *122 injury." [FN32] The implementing regulations for the MBTA also provide for the USFWS to issue "depredation orders" "[u]pon receipt of evidence clearly showing that migratory game birds have accumulated in such numbers in a particular area as to cause or about to cause serious damage to agricultural, horticultural, and fish cultural interests . . . ." [FN33] The regulations require that such orders be published in the Federal Register. [FN34]

NEPA AND CEQ'S IMPLEMENTING REGULATIONS

NEPA is the "basic national charter for protection of the environment." [FN35] Among the critical purposes of the statute are to "insure that environmental information is available to public officials and citizens before decisions are made and actions are taken," and to "help public officials make decisions that are based on understanding of environmental consequences . . . ." [FN36] As the CEQ regulations implementing NEPA explain, "[p]ublic scrutiny [is] essential to implementing NEPA." [FN37] To accomplish these purposes, NEPA requires all agencies of the federal government to prepare a "detailed statement" regarding all "major federal actions significantly affecting the quality of the human environment." [FN38] This statement is known as an EIS. Under NEPA, an EIS must describe (1) the "environmental impact of the proposed action," (2) any "adverse environmental effects which cannot be avoided should the proposal be implemented," (3) alternatives to the proposed action, (4) "the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity," and (5) any "irreversible or irretrievable commitment of resources which would be involved in the proposed action should it be implemented." [FN39]

When considering a proposed action under NEPA, the CEQ regulations require an agency to first determine whether the action is one that will normally have "significant" impacts and thus require the preparation of an EIS. [FN40] If an agency is not sure whether an EIS is required, it must prepare an EA to determine whether an EIS is necessary. [FN41] The EA must discuss the need for the proposal, evaluate alternatives that would cause less adverse environmental impacts, and provide sufficient evidence and analysis to support the agency's determination as to whether the proposed action will significantly affect the *123 environment. [FN42] In determining whether an EIS is required, the agency must analyze the impacts of the proposed action in terms of "context" and "intensity." [FN43]

Where the agency is proposing a "site-specific action" the determination of "significance" will "depend upon the effects in the locale . . . ." [FN44] As to "intensity," the agency must consider, among other factors, "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial" or "may establish a precedent for future actions with significant effects," [FN45] and whether "the action threatens a violation of Federal . . . law or requirements imposed for the protection of the environment." [FN46] As courts have explained, the presence of one or more of these factors should result in an agency decision to prepare an EIS. [FN47] In addition, NEPA further provides that agencies "shall . . . study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." [FN48] This statutory requirement applies to agency decisions regardless of whether the agency prepares an EA or an EIS for the proposed action.

The only time environmental review is not required is when the agency has "categorically excluded" the action. [FN49] However, a categorical exclusion may only be invoked for those actions which do not "individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementing [the CEQ] regulations." [FN50] The Department of Interior's Manual implementing the CEQ regulations provides that its agencies "must" issue NEPA documentation, and shall not categorically exclude an action, when the action has "highly controversial environmental effects," has "highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks," would "[e]stablish a precedent for future action . . . with potentially significant environmental effects," or would "[t]hreaten to violate a Federal, State, local or tribal law or requirement imposed for the protection of the environment." [FN51]

*124 MARYLAND'S FEDERAL PERMIT

Because mute swans are protected under the MBTA, in March 2003, MDNR submitted an application to the USFWS for an MBTA depredation permit "to addle eggs in up to 350 nests" and to kill "1,500 adult and sub-adult mute swans" "by lethal means" throughout the entire state. [FN52] In April 2003, the USFWS issued a depredation permit, which purported to authorize the MDNR and its agents to kill 1,500 mute swans throughout the entire state of Maryland. The issuance of the permit had never been published in the Federal Register, in proposed or final form.

Despite the fact that the Conventions, the MBTA, and the USFWS's own regulations only allow the issuance of a depredation permit to address "extraordinary conditions" in which particular birds "may become seriously injurious to the agricultural or other interests in any particular community," [FN53] the USFWS issued a blanket authorization to kill these 1,500 mute swans in any community or location "throughout the State of Maryland." The USFWS failed to make any specific findings as to whether particular mute swans were in fact "seriously injurious to the agriculture or other interests in any particular community" within the state of Maryland. [FN54] Nor did the USFWS determine that MDNR had provided "evidence clearly showing that migratory game birds have accumulated in such numbers in a particular area as to cause or about to cause serious damage to agricultural, horticultural, and fish cultural interests . . . ." [FN55]

In issuing the permit, the USFWS also did not conduct any environmental review under NEPA, as it had done for other migratory bird depredation permits, such as a permit authorizing the killing of only 300 cormorants. [FN56] Instead, the USFWS issued a single categorical exclusion for all permits to kill an unlimited number of mute swans "nationwide." [FN57] The specific categorical exclusion cited by the agency to kill mute swans throughout the entire nation provided that certain "permit and regulatory functions" may be excluded, but only "when such permits cause no or negligible environmental disturbance." [FN58] The USFWS did not issue a categorical exclusion for Maryland's depredation *125 permit. Thus, the USFWS did not provide any contemporaneous explanation as to whether the decision to authorize the elimination of half of the entire mute swan population from Maryland should be categorically excluded from NEPA's environmental review procedures. The USFWS also never explained how its permit would not "have a significant environmental effect," and thus require the preparation of an EA or an EIS. [FN59] Nor did the USFWS explain whether its decision to approve the Maryland's permit fell within the agency's own exceptions to categorical exclusions.

TRY AND TRY AGAIN

Just three days after The Fund for Animals' suit was filed in May 2003, the MDNR surrendered its permit to the USFWS, and the agency announced that it would prepare an EA on its issuance of depredation permits for mute swans. The USFWS had written to the MDNR that, because of The Fund's "allegations regarding the Service's compliance with the National Environmental Policy Act" and the agency's desire "to fully examine" the issues raised by The Fund, "the Service urges the State to give serious consideration to discontinuing activities under the permit and surrendering the permit." [FN60] The MDNR promptly responded, stating that it "assents to the urging of the USFWS and will discontinue its activities under the permit" effective the next day. [FN61] Nonetheless, at least nine permits to kill mute swans in Atlantic Flyway states were not suspended or withdrawn, and remained in effect. [FN62] MDNR agents had killed approximately 100 mute swans before halting the shooting.

The USFWS hastily prepared an EA and made the counterintuitive finding in August 2003 that authorizing state officials to slaughter as many as 31,000 of these majestic birds over a period of up to ten years, thereby reducing the overall Atlantic Flyway population by more than 67 percent, would not have any "significant" environmental effect--a Finding of No Significant Impact (FONSI) thus obviating the need for an EIS pursuant to NEPA. [FN63] The Fund for Animals and other plaintiffs filed a second suit in August 2003, [FN64] challenging the new EA and the USFWS's decision to immediately authorize Maryland to resume killing as many as 525 mute swans. Because the Maryland permit was predicated on a fundamentally flawed NEPA analysis, and failed to comport with the basic requirements of the MBTA, the plaintiffs *126 sought a preliminary injunction to preserve the status quo until such time as the court could resolve the merits of their claims.

The USFWS had announced the availability of its Draft EA in July 2003, [FN65] identifying four alternatives to achieve the "primary goal" of "minimiz[ing] environmental damage done by mute swans" throughout the Atlantic Flyway. [FN66] The USFWS's "Proposed Action" provided that the agency would authorize states to use, among other techniques, "gunshot, cervical dislocation, or carbon dioxide asphyxiation." [FN67] As a result, the USFWS proposed to reduce the overall Atlantic Flyway mute swan population from approximately 14,300 to 4,675 birds, by allowing states to kill as many as 3,100 mute swans each year for as many as ten years. [FN68]

Not surprisingly, according to the EA, the principle "environmental damage" done by mute swans that necessitated such a radical kill-off related to their alleged consumption of SAV. [FN69] However, illogically, the USFWS frankly admitted that mute swans are not "the primary, or even a major, reason for the decline in [SAV] in the Chesapeake Bay or anywhere else." [FN70] Rather, the USFWS acknowledged that "pollution and other anthropogenic factors are largely responsible for long-term declines in the abundance of SAV." [FN71]

Nonetheless, in its EA, the USFWS failed to consider any alternatives that would address the "primary" factors adversely impacting SAV, including "pollution and other anthropogenic factors." [FN72] Instead, the USFWS contended that, because mute swans do play some unquantified role in the loss of SAV, considering such alternatives would be "irrelevant." [FN73] The only alternatives given at least some consideration in the EA were a "No Action" alternative; an alternative that considered controlling mute swan populations through egg addling (i.e., destroying mute swan eggs before they hatch); [FN74] and an alternative providing for a variety of non-lethal population control techniques. [FN75]

*127 In addition, although in the Final EA the USFWS repeatedly acknowledged that the use of egg addling would permit the states to reduce their mute swan populations, [FN76] its FONSI inconsistently concluded that egg addling is "not an effective technique, in and of itself, for reducing Mute Swan populations." [FN77] The USFWS never considered whether egg addling, in combination with the non-lethal techniques discussed in the EA, would be effective enough to avoid the need for the massive slaughter of this species protected under the MBTA.

Despite the controversy and extraordinary public interest in the USFWS's proposal to permit the eradication of large numbers of mute swans in several states, the agency provided the public only two weeks to obtain copies of the Draft EA, review it, and submit comments. [FN78] Indeed, the USFWS refused to extend the comment period despite pleas from the public, as well as from U.S. Congressman Chris Van Hollen (D-MD) and Senator Paul Sarbanes (D-MD) who asked for more time for their constituents to comment on this "controversial" decision. [FN79]

Although in the EA the USFWS purported to objectively consider whether to issue permits to state agencies to kill mute swans, in fact the USFWS had already issued permits to many states for precisely these activities--permits which were valid before, during, and after the preparation of the EA. Thus, many Atlantic states, such as Vermont, New York, New Hampshire, Ohio, and others, already had the authority to continue activities pursuant to their permits even before the USFWS prepared the EA to allegedly consider whether to issue those permits.

In August 2003, the USFWS issued its FONSI, as well as a Record of Decision (ROD) concluding that the large-scale eradication of 67 percent of the mute swans in the Atlantic Flyway would have "no significant impact" on the quality of the human environment. [FN80] The FONSI entirely failed to explain why the agency's decision did not meet many *128 of the CEQ's "significance" factors, given the purported local "beneficial" impacts of the action on "ecologically critical areas;" the "highly controversial" and "highly uncertain" nature of the action and its impacts; the decision's precedent-setting effect; and the possibility that the Service's approach violates the MBTA. [FN81]

AN INHERENTLY FLAWED DECISION

In July 2003--before the EA's ink had even dried--the MDNR had submitted a new application for a permit to kill mute swans. The application contained no details concerning where MDNR proposed to kill mute swans, where mute swans were causing the kind of damage that would justify a depredation permit, or the nature of that damage, but instead identified the "one size fits all" approach of the entire Chesapeake Bay and abutting counties. Just a few days after issuing its NEPA decision in August, the USFWS issued a new permit to Maryland authorizing MDNR to "kill by means of shotgun or rifle, up to 525 Mute Swans" or "to capture and euthanize these swans" for the remainder of 2003. [FN82]

The permit--which expressly noted that it is "renewable next year," [FN83]--entirely failed to identify the "extraordinary conditions" where particular birds "may become seriously injurious to the agricultural or other interests in any particular community," as required to issue such a permit. [FN84] The USFWS's decision to issue the second permit, like its decision to issue the first permit, was fraught with legal and factual errors.

RATIONALIZING A DECISION ALREADY MADE

The CEQ regulations provide that an EA must be "prepared early enough so that it can serve practically as an important contribution to the decision-making process" and may not be used simply "to rationalize or justify decisions already made." [FN85] The phrase "early enough" means "at the earliest possible time to insure that planning and decisions reflect environmental values." [FN86] Thus, as the Ninth Circuit Court of Appeals has explained, "the comprehensive 'hard look' mandated by Congress and required by the statute must be timely, and it must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made." [FN87]

*129 In this case, however, although the purported "purpose" of the USFWS's August 2003 EA on mute swan management was to determine whether "the Service [should] continue to issue depredation permits for mute swans," [FN88] in fact the USFWS had already issued at least fourteen such permits, and at least nine such permits were currently outstanding at the time the USFWS prepared the EA. [FN89] Thus, as in other cases where courts have set aside EAs that have been prepared after the agency had authorized the third party action that was the very subject of the EA, here the agency had fundamentally subverted NEPA by preparing an EA on permits to kill mute swans that had already been issued. [FN90]

As the plaintiffs pointed out, only by preparing an EA before authorizing the very activities the EA is considering could the USFWS objectively evaluate the proposal, and alternatives, in the manner NEPA requires. [FN91] Otherwise, NEPA is subverted because the agency's outstanding permits are likely to "influence. . .their evaluation of the environmental impacts of the proposal." [FN92] In other words, the issuance of the permits constitutes the very "irreversible and irretrievable commitment of resources," [FN93] that NEPA prohibits an agency from making before it has completed the analysis required by the statute. [FN94]

While Maryland did surrender its permit and only received a new permit after the EA and FONSI were issued, the EA considered permits throughout the Atlantic Flyway, many of which were still pending. Thus, while the USFWS might have been in a different position had it insisted--as NEPA demands--that all the states surrender their permits until such time as the agency had considered the issue as NEPA requires, the agency chose not to do so, thereby turning the entire NEPA process into a make-work exercise because "the die already had been cast." [FN95] Moreover, the mere fact that the agency "had the ability *130 of requesting the permittees to surrender their permits . . . if the results of the [EA] dictates such a result," does not cure this problem, as the USFWS asserts in its Final EA, [FN96] for, in theory, an agency always has that option.

AT WAR WITH ITSELF

NEPA requires agencies to prepare an EIS regarding all "major Federal actions significantly affecting" the environment, [FN97] and NEPA's implementing regulations set forth a number of criteria governing whether an action is "significant," [FN98]--the presence of any one of which "should result in an agency decision to prepare an EIS." [FN99] To demonstrate that an EIS is required, a "plaintiff need not demonstrate that significant effects will occur." [FN100] Rather, "it is enough for the plaintiff to raise 'substantial questions whether [an action] may have a significant effect' on the environment." [FN101] In this case, given that the USFWS's own Final EA and ROD demonstrated unequivocally that, at the very least, there was a "substantial question" regarding many of these "significance" factors, the USFWS flatly violated NEPA by refusing to prepare an EIS.

Indeed, the USFWS's entire raison d'etre for its massive swan killing program was that reducing the mute swan population by more than 67 percent was necessary to avoid the "devastating" impacts on the environment that would ensue in the absence of such mute swan management. [FN102] Thus, according to the USFWS itself, the mute swan killing the agency had approved would have significant beneficial impacts on the environment. However, the CEQ regulations make it absolutely clear that an EIS is required for any action with significant impacts, even where those impacts are beneficial to the environment. [FN103] Accordingly, the USFWS's own rationale for the Proposed Action approved in its FONSI and ROD demonstrated that an EIS was necessary. *131 [ FN104] Moreover, the significant beneficial impact the USFWS pointed to were purported impacts on "ecologically critical areas," effects on which are yet another basis for finding an agency's action "significant." [FN105]

On the other hand, the significant adverse impacts that a two-thirds die-off of mute swans would have had on mute swans, as well as on the interests of the plaintiffs and other residents who enjoy observing and interacting with these birds in the wild, also demonstrated the need for an EIS. [FN106] Indeed, the CEQ regulations make it clear that the USFWS must consider the localized impacts of its action. [FN107] Given the undoubtedly significant local impacts that killing two-thirds of the mute swans up and down the east coast would have had on individuals who enjoy observing and appreciating these birds, it was evident that there was at least a "substantial question" that required an EIS. [FN108] Residents who found the time to submit comments within the brief two-week window made statements such as: "the bird carries a legendary presence"; "It is easy for those who do not see the swan daily to accept the swan's demise"; "I disagree wholeheartedly with the proposed massacre of thousands of mute swans. PLEASE, don't do this"; and "Please, do not make it legal to murder our swans." [FN109]

Similarly, the "highly controversial" and "unknown" nature of the impacts of the USFWS's proposal also triggered the EIS requirement. [FN110] Indeed, the USFWS's EA was a document at war with itself, for at the same time the agency purported to justify the massive mute swan killing as necessary to avoid "devastating" impacts on SAV, [FN111] the agency also frankly acknowledged that mute swans were not "the primary, or even a major, reason for the decline in submerged aquatic vegetation (SAV) in this Chesapeake Bay or anywhere else." [FN112] Thus, since the EA made it plain that the agency itself did not even know whether authorizing *132 states to kill mute swans would help alleviate the problems with SAV, it should have at the very least prepared an EIS to deal with this uncertainty and scientific controversy. [FN113]

The impacts, and suitability, of various alternatives were similarly uncertain. Thus, for example, while in its Final EA the USFWS repeatedly acknowledged that egg addling would allow for the "mute swan population [to be] reduced over a period of years," [FN114] in its FONSI the agency inexplicably rejected egg addling on the grounds that it would not be an "effective technique. . .for reducing populations." [FN115] In fact, as animal protection groups have explained, an effective egg addling program could significantly reduce mute swan populations without requiring the massive killing of these birds called for by the USFWS. Moreover, the USFWS's entire approach here--its rush to judgment, its offhand rejection of suitable alternatives, its entirely self-contradictory rationales--also demonstrated that this EA set a terrible precedent, which was yet another reason it requires an EIS. [FN116]

Moreover, rather than present "a convincing case that the impact was insignificant" in order to avoid preparing an EIS, [FN117] the USFWS based its FONSI solely on its conclusion that killing two-thirds of the mute swans in the Atlantic Flyway would not adversely impact the genetic viability of the species as a whole, or extirpate mute swans from these areas entirely. [FN118] However, the notion that an agency's approval of the direct killing of animals can only be significant, thereby requiring an EIS, where it is approving the complete extermination of a species is not only logically bankrupt, but runs counter to many cases where courts have required EIS's for agency actions impacting animals on a less dramatic level. [FN119]

*133 And at the same time the USFWS had prepared an EA on mute swan killing in the Atlantic Flyway, the agency was considering mute swan killing in other areas throughout the United States. [FN120] This approach violated the well-established NEPA principle that an agency may not "avoid the . . . requirement that an EIS be prepared for all major federal actions with significant environmental impacts by dividing an overall plan into component parts, each involving action with less significant environmental impacts." [FN121] Indeed, this fundamental flaw was highlighted by the fact that, in its FONSI the USFWS discounted the environmental impacts of its proposal on the grounds that it will not impact mute swans elsewhere in the country, [FN122] despite the fact that the USFWS was in fact considering allowing mute swans to be killed in large numbers in those areas as well. In short, by preparing separate EAs on mute swan killing in different regions of the country--in stark contrast to the USFWS's preparation of EISs for nationwide, significant management actions for cormorants, Canada geese, and other bird species--the USFWS had ignored the overall impacts of its approach toward the management of this species protected by the MBTA. [FN123]

Not surprisingly, the USFWS itself has prepared EISs--and had extensive public hearings--on other similar, nationwide migratory bird control activities that fall far short of deliberate extinctions. [FN124] Yet, in this particular case, the USFWS decided to simply proceed with a major mute swan management program --without preparing an EIS. [FN125]

*134 TOO LARGE IN SCOPE

Despite the clear mandates of NEPA, the generic EA and FONSI prepared by the USFWS--which covered a total of seventeen entire states, including numerous ecologically critical areas--were fatally deficient, for they did not disclose: (a) which local environments were affected by the USFWS's decision to authorize migratory bird killings, (b) how many birds would be killed at individual sites during this year's program or in any future years, (c) why birds at particular sites must be killed, or (d) what the environmental impacts of those actions would be in each particular community. As a result, the affected public was left entirely without any concrete information to assess whether to support or oppose the USFWS's decision, whether there were alternatives to lethal mute swan control at specific, individual sites, and whether the actions authorized by the agency were likely to adversely affect their Congressionally protected interests in preserving "safe, healthful, productive and aesthetically and culturally pleasing surroundings." [FN126] This glaring and unexplained omission necessarily rendered the USFWS's NEPA process unlawful in two closely related ways.

First, the USFWS's failure to disclose exactly where the proposed action was to be carried out and how many federally protected birds were to be killed in each location violated NEPA's core public notification requirements. It is well settled that one of the primary purposes of NEPA is to "guarantee that the relevant information will be made available to the larger audience" so that the public can "play a role in both the decision making process and the implementation of that decision." [FN127]

The USFWS had disregarded these regulatory requirements here, as well as the underlying public participation principles embodied in NEPA, by refusing to disclose to the public the most rudimentary information about the massive swan killing action authorized by the agency. Thus, the agency had never informed the affected public of exactly when, where, and how federally protected swans would be killed at particular sites throughout the entire seventeen states of the Atlantic Flyway. Rather, the agency had stated only that state officials may remove some unspecified number of birds (up to a total of 31,000) from some undisclosed areas, somewhere in these states, at some time. There was obviously no possible way for the affected public to "play a role in [the agency's] decision making process" if the agency did not even disclose precisely what the decision was, where it *135 was going to be implemented, and why it must be conducted in a particular community. [FN128]

Indeed, because the EA did not identify the types of problems that were being experienced at particular sites or the unique features of the sites themselves, there was no way to evaluate potential alternative management options, whether the particular methods selected by the agency were effective or appropriate, and what the environmental impacts of the particular management actions might be. Hence, readers of the agency's EA were left with essentially no information about which localized populations of swans would be killed, how many birds were to be killed at these sites, why birds at a particular site must be killed, or what the site-specific environmental impacts at those particular localized areas might be. Thus, as one federal court observed in a similar context, the USFWS's EA was insufficient because it "does not provide the detailed analysis of local geographic conditions necessary for the decision-maker to determine what course of action is appropriate under the circumstances," nor does it "allow those who are not part of the decision- making process to adequately evaluate and balance the [relevant] factors on their own." [FN129]

Moreover, by failing to include any site-specific analysis in the EA, the USFWS prevented the public from weighing in on one of the most important matters at stake in the EA --i.e., whether and exactly where mute swans were adversely impacting SAV. [FN130] Thus, regardless of whatever else may be said about the requirements of NEPA, it cannot be disputed that an agency proposing to take a potentially significant action should have, at a minimum, provide the public with enough "relevant information" to determine where the action will take place and to what degree the action is likely impair their aesthetic and recreational interests. [FN131]

Second, and for similar reasons, the agency's refusal to disclose the location and magnitude of the widespread migratory bird killing operations it had authorized had also made it impossible for the agency to make a reasoned determination whether any or all of its actions were "significant" under the CEQ regulations, and hence require the preparation *136 of an EIS. [FN132] For example, the agency's EA failed to consider the "context" of the proposed action because it did not even disclose the relevant "locale"-- much less provide a description of the environmental "effects" on that "locale"--as required under section 1508.27(a) of the CEQ regulations. [FN133] Obviously, the USFWS cannot fulfill its obligation to describe the environmental effects of its actions on the particular "local[ities]" where birds are to be killed without ever disclosing where those localities are. [FN134] Similarly, without a description of the particular sites where the agency was authorizing migratory bird killings, there was no way the agency or the public could have possibly evaluated whether these actions affected the "[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands [and] ecologically critical areas"--another mandatory CEQ significance factor. [FN135]

In short, without an evaluation of the "specific sites" where swans would be killed, the USFWS's generic EA--which purported to cover seventeen states and the killing of as many as 31,000 swans, somewhere in one or more of those states, sometime in the next ten years--simply could not provide the agency and the public with the site-specific information necessary to determine whether the agency's actions were significant within the meaning of the CEQ regulations--much less present a "convincing case that [the impacts of their action are] insignificant." [FN136] Accordingly, the EA "utterly fails to meet the standard of environmental review necessary before an agency decides not to prepare an EIS." [FN137] While the Maryland permit provided some additional general information regarding where the birds would be killed, it was issued after the NEPA process was complete, and the public was not afforded any opportunity to comment on it.

*137 TO THE FULLEST EXTENT POSSIBLE

It is well settled that "[c]itizen participation is a vital ingredient in the success of NEPA" and that the "opportunity for local citizens or other interested parties to participate in the preparation of the environmental analysis is mandatory under NEPA." [FN138] Thus, the CEQ regulations provides that "NEPA procedures must ensure that environmental information is available to the public officials and citizens before decisions are made and before actions are taken." [FN139]

In this case, in its rush to complete an EA, the USFWS inexplicably provided the public with only two weeks to review, prepare and submit comments on the Draft EA. [FN140] The USFWS's decision to curtail the public review process was especially troubling in light of the fact that--as the USFWS was acutely aware--this was a highly controversial program of significant national and local public interest. Indeed, the need for a full opportunity for public review and feedback is particularly compelling in cases such as this, where the USFWS had repeatedly failed to comply with its obligations under federal law to protect mute swans, and where serious questions existed whether the migratory bird killing operations proposed by Maryland actually met the statutory criteria for issuance of a "depredation" permit. Without an adequate opportunity to review and comment on the USFWS's decision to authorize this questionable activity, the affected public was left to wonder whether the USFWS was merely "rubber-stamping" Maryland's decision to kill mute swans, and repeating the same mistakes all over again--a concern that was highlighted by the USFWS's ultimate decision to grant a virtually unlimited, statewide permit to Maryland to kill mute swans.

Under these circumstances, the USFWS's two-week comment period could hardly be characterized as fulfilling the CEQ's mandate that agencies "shall to the fullest extent possible . . . encourage and facilitate public involvement in decisions which affect the quality of the human environment." [FN141] Indeed, several courts have found violations of NEPA where a federal agency has failed to adhere to the public participation requirements set forth in the CEQ regulations. For example, in Save Our Ecosystems v. Clark, [FN142] the Ninth Circuit affirmed a district court's holding that a federal agency's decision to allow only a five-day public comment period on an EA was inadequate and in violation *138 of NEPA and the CEQ regulations. [FN143] Similarly, here, the USFWS's decision to arbitrarily truncate public review and comment on its controversial decision to issue a whole host of MBTA permits for mute swans also raised very substantial questions about USFWS's compliance with NEPA and the CEQ regulations--questions that needed to be addressed on the merits before mute swans were killed in Maryland.

The CEQ regulations also require that, even in preparing an EA, an agency must adequately consider appropriate alternatives to its proposal. [FN144] Here, however, the USFWS completely ignored any of the alternatives that would address the very problem, which is the primary basis for the agency's decision--reducing adverse impacts on SAV. Thus, as noted, the agency acknowledged that the action under consideration--killing mute swans--was not "even a major" factor in the depletion of SAV. [FN145] At the same time, the USFWS also acknowledged that "pollution and other anthropogenic factors are largely responsible for long-term declines in the abundance of SAV . . ." [FN146]

Accordingly, to comply with NEPA the USFWS must consider alternatives that would address these "largely responsible" factors. As described in the public comments on the Draft EA, these alternatives included, at minimum, steps to regulate agricultural run-off and various other commercial activities that adversely affect SAV. [FN147] While the states might want to reduce mute swan populations immediately, particularly given that the swan is a protected species under the MBTA, it was incumbent upon the USFWS to meaningfully evaluate whether other alternatives might accomplish the states' objective-- even over a longer time period--without authorizing the massive slaughter of *139 mute swans. The USFWS entirely failed to consider any alternatives to address the primary cause of the continuing environmental damage to the Bay-- including "the most obvious of all possible alternatives" [FN148]--violating NEPA and the CEQ regulations. [FN149]

The fact that such alternatives were beyond the authority of the USFWS to undertake directly or to mandate was entirely irrelevant for purposes of whether they must be considered pursuant to NEPA, which is designed to inform the agency, the permittee, and the public regarding what options exist to fulfill the "purpose and need" for the project, irrespective of who might implement those options. Indeed, the CEQ regulations explicitly require that the agency must "[i]nclude reasonable alternatives not within the jurisdiction of the lead agency." [FN150] Nor could the USFWS defend its lack of alternatives by framing the object of its EA as simply "to determine how to respond to applications for permits to take mute swans," [FN151] and thus contend that considering other alternatives was somehow beyond the scope of the EA. Indeed, if agencies could avoid alternatives by reframing an action's purpose, NEPA would be eviscerated altogether. [FN152]

DISREGARDING THE MBTA

The USFWS decision to allow the wholesale killing of mute swans also flatly violated domestic and international laws protecting swans. Thus, while the USFWS's MBTA regulations require that an applicant for a depredation permit identify the "particular area[s]" where birds will be taken, [FN153] in its application the MDNR identified the entire Chesapeake Bay region as the "location where [the] authorized activity may *140 be conducted." [FN154] Thus, MDNR's permit applied to a grand total of thirteen of Maryland's twenty-four counties--or, almost 6,000 square miles. [FN155] Taken together, these counties more reflect an entire regional area, not the "particular area[s]" that the USFWS's regulations require the permittee to identify. [FN156]

In addition, MDNR's application failed to demonstrate "the extent of the injury" that mute swans were allegedly causing to "crops or other interests." [FN157] MDNR's application pointed to several "interests" that supposedly justified killing mute swans--none of which involved agriculture, and none of which appeared to be based on recent, peer-reviewed science. As Dr. Bette Stallman of The Humane Society of the United States commented in response to the permit application, "To support assertions regarding the ecological impacts of mute swans in North America or other areas where they are not native, the EA cites primarily sources that appear not to have been peer-reviewed, such as abstracts from conference proceedings, Ph.D. or Masters theses, websites, government reports (some of which may have been reviewed by outside experts), single-author books, and personal communications." [FN158]

There was even less credible evidence to show that mute swans were causing injury to crops in any "particular community." [FN159] Thus, MDNR had concluded that "there is no evidence to suggest that mute swans are causing any impact to agriculture in Maryland." [FN160] In the EA, the USFWS insisted that "[i]n Maryland, small numbers of mute swans have been observed feeding on turf grass and rye grass crops in areas where the availability of SAV was considered to be limited," [FN161] yet, in its permit application materials, MDNR had certainly not identified the precise location where this damage had allegedly occurred, let alone tailored its permit application to reflect that it should be allowed to kill mute swans there. [FN162]

*141 Moreover, the agencies asserted that mute swans absolutely must be killed because they were adversely impacting marine and bird species, as well as humans, due to their "aggressive" behavior and "strong territorial nature." [FN163] However, none of these rationales were supported by solid, peer-reviewed evidence. For example, the USFWS asserted that by "overgrazing" on SAV, mute swans "can cause a functional reduction of aquatic habitat." [FN164] Yet, a simple examination of the USFWS's own "evidence" of any such possibility demonstrates just how conjectural this argument really is, for it is filled with qualifiers. [FN165] Judging from this "evidence," it is obvious that the USFWS did not even know whether mute swans "reduce the availability of certain wetland species," yet it relied on this "impact" to justify its decision to grant a permit to MDNR to kill mute swans. In short, MDNR's application fell far short of the application requirements for a permit to kill birds protected under the MBTA.

Despite the MDNR's failure to provide the required information in its permit application, the USFWS nevertheless decided to issue a blanket depredation permit, and did so without explaining whether and why the permit is consistent with the relevant provisions of the Conventions, the MBTA, and the USFWS's regulations. However, fundamental principles of administrative law demand that, in making any decision to grant or deny a MBTA permit, the USFWS must "articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made."' [FN166] The purpose of this requirement is to ensure that the court will be able "to evaluate the agency's rationale at the time of decision." [FN167]

In this case, the blanket depredation permit issued by the USFWS did not provide any indication that the USFWS actually considered whether the information submitted by MDNR met the Convention's strict requirements for depredation taking, nor is there anything on the face of the permit that might constitute a reasoned explanation for how the USFWS connected the facts presented in MDNR application *142 to the agency's decision to issue the permit. Indeed, as discussed above, MDNR's application materials did not provide any information from which the USFWS could have possibly made a determination that "extraordinary" and "seriously injurious" conditions actually exist is some "particular community" that might warrant the issuance of a depredation permit under Article VII. Not surprisingly, therefore, the permit issued by USFWS was completely devoid of any actual findings that "extraordinary" depredation conditions exist in any "particular community" where the FWS has authorized MDNR to kill migratory birds. For this reason alone, the USFWS permit was arbitrary and capricious, and in violation of the Convention, the MBTA, and the regulations. [FN168]

Even if the USFWS's silence could have somehow been construed as a rational explanation for why depredation conditions actually existed somewhere in the sixteen county region where the permit authorized the killing of birds--an assumption that would be completely at odds with applicable precedent [FN169]--the USFWS also neglected to provide any discussion, at all, that might serve as the "rational connection between the facts found and the choice made" specifically required under the APA. [FN170] For example, the USFWS failed to provide any explanation whatsoever for why the agency decided to authorize the killing of the extraordinary figure of 525 birds, as opposed to 50 birds, or even some lesser number of birds. Indeed, MDNR's application failed to provide any explanation for this number--which was apparently picked out of thin air as a figure high enough to ensure that Maryland could kill as many migratory birds as it see fit. In the absence of some specific findings by the USFWS that this approximate number of depredating birds actually existed in some "particular community" or communities, the USFWS's decision on the number of birds who may be killed under the permit could not have been anything other than an arbitrary and capricious decision--since there was no other legitimate basis upon which the USFWS could have possibly settled on the 525 figure. [FN171]

Rather than make the required findings under the Convention and the MBTA, and in lieu of providing the rational, non-arbitrary explanation *143 for those findings required under the APA, the USFWS decided to side-step these obligations completely by simply delegating to the permittee--MDNR--absolute discretion to determine when and where the conditions in a "particular community" [FN172] warrant depredation taking. In so doing, however, the USFWS not only departed from fundamental requirements of reasoned decision making under the APA, but also improperly delegated to MDNR the USFWS's statutory obligations to determine when, where, and under what circumstances the taking of migratory birds is permissible. [FN173] However, the USFWS cannot voluntarily delegate to MDNR "the power to decide when and to what extent protected migratory birds may be captured and killed" anywhere in the entire Chesapeake Bay region. [FN174] Accordingly, because the MDNR's application did not provide the information required under the regulations for issuance of a depredation permit, and because USFWS's permit did not explain how the decision to authorize the killing of migratory birds comports with the requirements of the Convention, the MBTA, and the regulations, the USFWS's decision was arbitrary and capricious and had to be set aside. [FN175]

HARMING SWANS AND THE PUBLIC

It is well recognized that a plaintiff's diminished opportunity to observe and appreciate wildlife constitutes a cognizable injury in federal court. [FN176] In other words, if the plaintiffs "ha[ve] fewer opportunities to view wild [animals] as a result of the defendants' actions," they suffer a concrete injury within the meaning of Article III of the U.S. Constitution. [FN177] In this case, by permitting the removal of 67 percent of all the mute swans over the next several years, including 86 percent of the swans in Maryland alone, [FN178] the USFWS was significantly reducing plaintiffs' opportunities to observe and appreciate these animals in *144 the wild--an injury that could not be remedied by money damages. Thus, the USFWS's actions threatened plaintiffs' ability to observe, interact with, study and appreciate mute swans in their natural habitat. The plaintiffs had regularly visited with mute swans, including in areas where the USFWS had authorized Maryland to kill mute swans. Under these circumstances, plaintiffs were entitled to injunctive relief because their injuries were irreparable -- i.e., could not be compensated with money damages. [FN179]

It is also well established that plaintiffs suffer cognizable injuries when animals whom plaintiffs have an interest in viewing and otherwise enjoying are subjected to stressful and harmful activities sanctioned by federal agencies. [FN180] Thus, just as the U.S. District Court for the District of Columbia explained in preliminarily enjoining a similar action to reduce the number of bison in Wyoming, "it is not unreasonable for. . .individuals to claim that seeing or even contemplating the type of treatment of the bison inherent in an organized hunt would cause them to suffer an aesthetic injury that is not compensable in money damages." [FN181]

Here, the USFWS authorized state agents to kill thousands of mute swans by "gunshot, cervical dislocation, or carbon dioxide asphyxiation," [FN182] and plaintiffs had explained their deep concern that, in addition to their diminished opportunities to view these animals, they might be subjected to seeing dead or dying mute swans as a result of these efforts--including specific animals with whom they had an ongoing relationship. Accordingly, plaintiffs "seeing or even contemplating" the killing of thousands of mute swans constitutes irreparable harm, and the greater the number removed, the greater the injury to plaintiffs. [FN183]

The plaintiffs were also injured by the USFWS's failure to comply with NEPA in approving this mute swan killing. Thus, as the court explained in the bison suit, plaintiffs suffer a "procedural injury" *145 when an agency "fails[s] to comply with NEPA." [FN184] In short, the entire "procedural and information thrust of NEPA" would have been defeated if the USFWS permitted Maryland to kill mute swans before the agency had fully and fairly considered the environmental consequences, as well as all available alternatives. [FN185]

On the other hand, certainly the USFWS would not be harmed by the temporary delay sought by plaintiffs. As for Maryland, while the state apparently wanted to begin killing mute swans before the end of the year's molting season, there was simply no urgent reason that the killing of mute swans must begin immediately. Indeed, the USFWS's permit did not identify any pressing need to kill mute swans. Since this appeared to be the first time either the federal or state agency had attempted to comprehensively reduce the swan population, the requested injunction would merely "require the defendants to maintain a course of conduct that they have pursued for many years." [FN186]

One of the more lively courtroom exchanges in this case came when Judge Sullivan repeatedly asked the federal and state counsel why they opposed a temporary stay that would give the court time to make a final ruling on the merits of the case. The agencies repeatedly claimed that their mute swan management actions could not be delayed for fear of major impacts to the environment, yet their entire defense rested on the argument that the killing of mute swans would have no significant impact on the environment. And the urgent need to kill up to 525 mute swans in a population of approximately 3,600--when the entire complaint against the birds is that they may cause damage to the environment in the future if their population grows--just didn't fly.

SPEAKING FOR THE MUTE SWANS

On September 9, 2003, Judge Sullivan granted the preliminary injunction requested by The Fund for Animals, and blocked Maryland from killing mute swans. Judge Sullivan's 61-page opinion concluded with the following paragraph:

There is no question that all parties before the Court have the interests of the environment, and particularly of the Chesapeake Bay, at heart. Nevertheless, upon consideration of the factors which courts are directed to weigh when considering whether to grant the extraordinary relief of a preliminary injunction, this Court concludes that plaintiffs have made a compelling showing of irreparable harm, *146 as well as a substantial case on the merits of both their National Environmental Policy Act and Migratory Bird Treaty Act claims. Furthermore, defendants have not succeeded in persuading this Court that they will suffer substantial harm or that the public interest will be adversely affected by the grant of short-term injunctive relief in this case. Accordingly, in order to preserve the status quo during the pendency of this action, the Court will essentially speak for the mute swans and issue a preliminary injunction prohibiting the state of Maryland from. . .killing any mute swans. . . [FN187]

With the proverbial handwriting on the wall, the USFWS decided to cancel all permits to kill mute swans that it had issued--not just in Maryland, but throughout the U.S.--in recognition that the agency's actions were not consistent with domestic and international law. More than fifty permits to state and local agencies were ultimately withdrawn.

While the mute swans are now safe and the USFWS cannot issue kill permits without first complying with NEPA, the MBTA, and Judge Sullivan's order, the birds are not out of the water yet. In December 2003, U.S. Congressman Wayne Gilchrest (R-MD), Chairman of the House Subcommittee on Fisheries Conservation, Wildlife and Oceans, held an "Oversight Field Hearing on Exotic Bird Species and the MBTA." The hearing was uncharacteristically held in Annapolis, not Washington, but was characteristically stacked with swan killing proponents, primarily representatives of the USFWS, MDNR, and a few environmental organizations that arbitrarily assign more aesthetic value to birds other than mute swans.

And in March 2004, Chairman Gilchrest introduced H.R. 4114, the "Migratory Bird Treaty Reform Act of 2004," to exempt "exotic" bird species from federal protections. Attempting to expedite the killing of mute swans through amendments to the MBTA is not only a knee-jerk reaction to unsubstantiated anecdotal evidence of environmental damage allegedly caused by mute swans, but it is also contrary to the international treaties the MBTA is required to implement. The MBTA was intended to provide a comprehensive, uniform system for the protection of both game birds and other bird species from all forms of unauthorized destruction. The treaties must be executed by the federal government, and the MBTA and all other domestic legislation must be consistent with the treaties.

It appears that the USFWS simply wants to avoid the EIS process, and is instead seeking a Congressional rider to kill mute swans. But if it is the intent to facilitate the wholesale killing of birds currently protected under the Conventions, simply amending the language of the MBTA to exclude introduced, non-native species is a proposal, which *147 is legally flawed. Because the MBTA must implement the Conventions, and because the Conventions themselves provide protections for "all swans" including mute swans, the government would need to renegotiate its treaties with Canada and the other signatory countries before mute swans can be removed from the protection of the MBTA and the Conventions.

There is no "native/non-native" distinction anywhere in the four Conventions. To the contrary, the Conventions were intended to protect birds who move between countries, not just native birds. The migratory birds covered by the MBTA are defined in the body of, and annexes to, the

four Conventions. Those lists are the product of careful negotiations between the Executive and the other signatories to the Conventions. H.R. 4114, however, tries to amend the terms of the Conventions--and thus unilaterally re-negotiate the terms of the treaties--by redefining what birds are covered. This is the equivalent of Congress trying to pass a law unilaterally redefining what commercial transactions are covered by the North American Free Trade Agreement.

In essence, the bill would eliminate a clear, closed list of species that has been implemented by several different countries for more than 75 years, and replace it with a vague, ill-defined standard of "native." This sweeping rewrite of the Conventions would not only authorize the USFWS to make subjective, non-scientific determinations about which species are sufficiently "native" to be protected under the Conventions, but would actually increase litigation over bird protection as courts are forced to sort out complicated historical arguments about which bird species were here first, which species deserve to live, and which species should be systematically exterminated.

The MBTA already includes provisions for dealing with birds who cause problems--it's just that no one has been able to show any problems caused by mute swans. Rather than offering a solution in search of a problem, Rep. Gilchrest and other members of Congress should leave the MBTA alone, and should direct their attention toward addressing the real threats to the Chesapeake Bay, such as nitrogen pollution from corporate agriculture and sewage treatment plants.

"INVASIVE" SPECIES

MDNR officials have repeated a certain mantra over and over again, stating that "this is a war for the hearts and minds of Marylanders where we, in the conservation community, are after their minds and the animal rights folks are after their hearts." [FN188] It is a nice sound *148 bite, but it makes the faulty assumption that exterminating mute swans--or any other so-called "exotic," "invasive," or "non-native" species--is logical. In fact, there is no scientific or legal consensus to define these terms. The entire idea of "invasive" and "non-native" species is a subjective--and highly emotional-- construct.

It is unfortunate that Maryland officials and some environmental organizations have developed a culture--some would call it a religious fervor-- aimed at eradicating any species they arbitrarily place on the "non-native" list. But these emotionally charged definitions don't always fit. Mute swans, for example, were introduced to the U.S. sometime over the last two centuries, while many other species protected by the MBTA also were not "originally" native to this continent--depending, of course, on the point in time arbitrarily chosen to define "native."

It begs a much broader question: What's wrong with being non-native? People who call for the extermination of exotic species usually point to specific examples of "invasive" non-native species--such as the zebra mussel and the snakehead fish--that have had costly or disruptive effects. But philosopher Mark Sagoff notes:

Examples, however, are not arguments. Every barrel contains bad apples. One cannot condemn an entire group because of the offensive qualities of a few individuals. . .In fact, native species can be every bit as harmful as non-native ones. Throughout the Chesapeake region, annoying mosquitoes have served as vectors of disease. Mosquitoes were active when Captain John Smith explored the area. A nasty jellyfish, ubiquitous in the Chesapeake Bay from June through September, stings anyone foolhardy enough to enter the water, which is the reason few swim in the Bay during the hot summer months. This horrid creature, albeit native, seems to have no important function, ecological or otherwise, other than stinging people. The dinoflagellate Pfiesteria Piscicida metamorphoses into vegetative life forms, which spread toxins responsible for killing millions of fish. Then these strange plants again transform into large amoebae to eat the fish. Dubbed the "cell from Hell," Pfiesteria do not hail from Dante's Inferno but have lived for millennia at the bottoms of rivers such as Maryland's Pokomoke. [FN189]

In other words, any species can cause problems, native or otherwise. Natural ecosystems regularly experience ebbs and flows of species and population sizes. What is unnatural is our attempt to manipulate an ecosystem to fit an aesthetic view of what we want it to look like, or to turn back the clock and try to recreate a facsimile of an ecosystem from some arbitrarily defined point in time. Deciding which species *149 get to live and which species get to die is the height of arrogance. We should remember that at some level, most of us are non-native.

It is incumbent upon people to mitigate any ecological damage caused by our actions, as well as to learn from our past mistakes of importing exotic species. But this does not mean we should blame the very species we brought here centuries ago, nor does it mean we should artificially arrest the natural progression of the various species in an ecosystem. They are here now, they have adapted to our environment, and they should be treated fairly and humanely. A mute swan floating on the Chesapeake Bay doesn't know whether her ancestors have been here for twenty, two hundred, or two thousand years--but she does have an interest in raising her young, living her life, and not being shot with a rifle or injected with poison.

Sound science indicates--and Bay protection organizations confirm--that the biggest threats to the Bay are nutrient runoff from intensive livestock farms and pollution from sewage treatment plants. Yet while the perpetrators of these crimes point fingers at each other, and while Governor Ehrlich relaxes the restrictions on corporate poultry farms in Maryland, mute swans have become the scapegoats. Rather than abdicating our responsibilities to confront the difficult problems, rushing down the politically expedient path of placing all the blame on a tiny population of graceful white birds, we must turn our focus toward finding scientific, humane solutions to restoring the health of the Chesapeake Bay.

[FNd1]. Michael Markarian is President of The Fund for Animals, a national animal protection organization based in Silver Spring, Maryland. Mr. Markarian received an M.A. in English Language and Literature from the University of Maryland at College Park. More information about The Fund for Animals is available at www.fund.org.

[FNdd1]. Jonathan R. Lovvorn is a partner with Meyer & Glitzenstein, a public interest law firm in Washington, D.C., and a Professorial Lecturer in Law at George Washington University School of Law. Mr. Lovvorn received a J.D. from University of California, Hastings College of the Law in 1995, and an LL.M. in Environmental Law and Natural Resource Policy from Northwestern School of Law of Lewis and Clark College in 2001.

[FN1]. MDNR Wildlife and Heritage Division, Mute Swans in Maryland: A Statewide Management Plan, 7 (April 2003).

[FN2]. 16 U.S.C. § 705 et seq. See also Hill v. Norton, 275 F.3d 98, 104, 106 (D.C. Cir. 2001).

[FN3]. MDNR Wildlife and Heritage Division, supra note 1, at 9.

[FN4]. Water Pollution in the Chesapeake Bay, Chesapeake Bay Foundation, http://www.cbf.org/site/PageServer?pagename=resources_facts_water_pollution (revised July 2003).

[FN5]. Letter from Paul Peditto, MDNR to Bette Stallman, Humane Society of the United States (23 Sept. 2002).

[FN6]. MDNR Wildlife and Heritage Division, supra note 1, at 10.

[FN7]. Id. at 10.

[FN8]. Mike Slattery, Serious Threat Posed By Swans Demands Serious Response, The Baltimore Sun, August 5, 2003.

[FN9]. See G.S. Brush & W.B. Hilgartner, Paleoecology of Submerged Macrophytes in the Upper Chesapeake Bay, Ecological Monographs 70(4), 645-667 (2000).

[FN10]. See G.H. Fenwick, Feeding Behavior of Waterfowl in Relation to Changing Food Resources in the Chesapeake Bay, 56 (dissertation, Johns Hopkins Univ. 1983) ("[t]esting was done by isolating swans in pens").

[FN11]. Id.

[FN12]. Bortolus, et al., Relationship Between Waterfowl and the Seagrass Ruppia Maritima in a Southwestern Atlantic Coastal Lagoon, Estuaries (Dec. 1998).

[FN13]. Brush and Hilgartner, supra note 9, at 665 (emphasis added).

[FN14]. E-mail from Mike Naylor to Edith Thompson, et al. (18 Oct. 2000) (emphasis added), (on file with author), see also id.

[FN15]. Sewage Treatment Plants: The Chesapeake Bay Watershed's Second Largest Source of Nitrogen Pollution, Chesapeake Bay Foundation, Oct. 29, 2003.

[FN16]. Chesapeake Bay Foundation, The State of the Bay Report 2003, (Oct.2003) http://www.cbf.org/site/PageServer?pagename=sotb_2003_index (last visited Feb. 25, 2004).

[FN17]. Dennis O'Brien, Breeder Offers To Take Mute Swans, Baltimore Sun, July 31, 2003.

[FN18]. Fund for Animals v. Norton, 281 F. Supp. 2d 209 (2003).

[FN19]. 50 U.S.C. § 21.41 (2004).

[FN20]. 39 Stat. 1702, T.S. No. 628, Gr. Brit. Table II, 312 (1916).

[FN21]. 50 C.F.R. Part 21.

[FN22]. 40 C.F.R. § 1500 et seq.

[FN23]. Id.

[FN24]. 5 U.S.C. 551 et. seq.

[FN25]. Convention Between the United States and Great Britain for the Protection of Migratory Birds. Aug. 16, 1916, U.S. - G.B., 39 Stat. 1702.

[FN26]. Convention Between the United States and Great Britain for the Protection of Migratory Birds. Aug. 16, 1916, U.S. - G.B., Art. VII, 39 Stat. 1702.

[FN27]. H.R. Rep. No. 243, 65th Cong., 2d Sess. at 1 (1918).

[FN28]. 16 U.S.C. § 703 (emphasis added).

[FN29]. 16 U.S.C. §§ 704, 712.

[FN30]. Id.

[FN31]. 50 C.F.R. § 13.12(a)(2).

[FN32]. 50 C.F.R. § 21.41(b).

[FN33]. 50 C.F.R. § 21.42.

[FN34]. Id.

[FN35]. 40 C.F.R. § 1500.1.

[FN36]. Id. at § 1500.1(b)-(c).

[FN37]. Id.

[FN38]. 42 U.S.C. § 4332(C) (2003).

[FN39]. 42 U.S.C. § 4332 (2003).

[FN40]. 40 C.F.R. § 1501.4(a).

[FN41]. 40 C.F.R. § 1501.4.

[FN42]. Id.

[FN43]. Id. at § 1508.27.

[FN44]. Id.

[FN45]. Id. at § 1508.27(b)(4).

[FN46]. Id. at § 1508.27(b)(10).

[FN47]. See Public Citizen v. Dep't of Transp., 316 F.3d 1002, 1023 (9th Cir. 2003).

[FN48]. 42 U.S.C. § 4332(2)(E).

[FN49]. 40 C.F.R. § 1501.4 (a).

[FN50]. Id. at § 1508.4.

[FN51]. Departmental Manual, 516 DM 2, Chapter 2, Appendix 2, Sections 2.3-2.5, 2.10.

[FN52]. Letter from Paul A. Peditto, Director, MDNR Wildlife and Heritage Service to Diane Pence, USFWS (13 Mar. 2003).

[FN53]. Art. VII, Convention; 50 C.F.R. § 21.41.

[FN54]. 50 C.F.R. § 21.41.

[FN55]. 50 C.F.R. § 21.42.

[FN56]. See, e.g., USFWS, Final Environmental Assessment of a Action to Issue a Migratory Bird Depredation Permit for the Take of Cormorants on Lake Ontario Islands, New York at 5 (May 1999).

[FN57]. Memorandum from Service Regional Migratory Bird Chiefs and Examiners, Regions 1-7 to Chief, Division of Migratory Bird Management (25 Mar. 2003) at 3.

[FN58]. Departmental Manual, 516 DM 6 Appendix I, Section 1.4C(1), 62 Fed. Reg. 2375, 2381 (16 Jan. 1997) (emphasis added).

[FN59]. 40 C.F.R. § 1508.4.

[FN60]. Letter from Diane Pence, USFWS to Paul Peditto, MDNR (May 16, 2003) (on file with author).

[FN61]. Letter from Paul Peditto, MDNR to Diane Pence, USFWS (May 16, 2003) (on file with author).

[FN62]. In the states of DE, MI, NH, NY, OH, PA, RI, VT, and WI.

[FN63]. 42 U.S.C. § 4333 (2003).

[FN64]. Fund for Animals v. Norton, 281 F. Supp. 2d 209, 216 (D.C. Cir. 2003).

[FN65]. Draft Environmental Assessment for the Management of Mute Swans in the Atlantic Flyway, 68 Fed. Reg. 39593 (July 2, 2003) (also available at http://www.epa.gov/fedrgstr/EPA-IMPACT/2003/July/Day-02/i16699.htm).

[FN66]. Id.

[FN67]. 281 F. Supp. 2d at 216.

[FN68]. Id. at 220, note 7.

[FN69]. Id. at 215. See also http:// www.fund.org/library/documentViewer.asp?ID=1070&table=documents (last accessed April 9, 2004).

[FN70]. Department of the Interior, U.S. Fish and Wildlife Service, Final Environmental Assessment (EA) for the Management of Mute Swans in the Atlantic Flyway at 77 (emphasis added). See generally http:// www.dnr.state.md.us/dnrnews/infocus/muteswan.asp (last accessed April 9, 2004).

[FN71]. Id.

[FN72]. Id.

[FN73]. Id.

[FN74]. See Id. at 40-42.

[FN75]. Id. at 42-43.

[FN76]. See Department of the Interior, U.S. Fish and Wildlife Service, Final Environmental Assessment (EA) for the Management of Mute Swans in the Atlantic Flyway at 43-44 (Alternative 3 in the "Comparison of Impacts by Alternative").

[FN77]. FONSI at 3; 68 Fed. Reg. 47084.

[FN78]. 68 Fed. Reg. 39593 (July 2, 2003).

[FN79]. See, e.g., Letter from U.S. Rep. Chris Van Hollen (D-MD) to USFWS (11 Jul. 2003) ("the July 16, 2003 public comment deadline is insufficient for [constituents] to provide complete and thorough comments on the assessment" which "is compounded by the fact that the initial announcement was published on July 2, 2003 and was not available to the general public until after the long Independence Day weekend, cutting out almost a week of the two-week comment period"); see also Letter from Senator Paul S. Sarbanes (D-MD) to Williams (11 July 2003) (stating that "[t]he Service's preferred alternative has raised serious concerns among some of my constituents and it is important they have an opportunity to thoroughly review the assessment and present their views") (on file with author).

[FN80]. FONSI at 2; 68 Fed. Reg. 47084 (7 Aug. 2003).

[FN81]. FONSI; 40 C.F.R. § 1508.27(b).

[FN82]. See MDNR Permit.

[FN83]. Id.

[FN84]. Art. VII, Convention; 50 C.F.R. § 21.41(b)(2)-(3).

[FN85]. 40 C.F.R. § 1502.5 (1987) (emphasis added).

[FN86]. Andrus v. Sierra Club, 442 U.S. 347, 351 (1979) (emphasis added); see also 40 C.F.R. § 1501.2.

[FN87]. Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000) (emphasis added).

[FN88]. See Final EA at 12.

[FN89]. See Permits; see also Final EA at 78-79 (admitting that "the Service allowed the other depradation permits [aside from Maryland], that had previously been issued by the Service in the Atlantic Flyway and which were not challenged in the litigation to remain in place") (emphasis added).

[FN90]. See Metcalf, 214 F.3d at 1146.

[FN91]. 40 C.F.R. § 1502.5(b) ("[f]or applications to the agency appropriate environmental assessments or statements shall be commenced no later than immediately after the application is received") (emphasis added).

[FN92]. Metcalf, 214 F.2d at 1145; see also Thomas v. Peterson, 753 F.2d 754, 761 (9th Cir. 1985).

[FN93]. Metcalf, 214 F.3d at 1143.

[FN94]. See Metcalf, 214 F.3d at 1145 (NEPA violated "by entering into a contract with the Makah [authorizing whaling] before [agency] considered its environmental consequences and prepared the EA"); Idaho Sporting Congress v. Alexander, 222 F.3d 562, 568 (9th Cir. 2000) (holding that agency NEPA document was inadequate where it was "prepared in response to litigation" and "after the original decisions to approve the timber sales were made").

[FN95]. Metcalf, 214 F.3d at 1144; Idaho Sporting Congress, 222 F.3d at 568 (the agency's post-decisional NEPA documents "do not remedy the fact that at the time the [agency] originally approved the timber sales, it did not have available all of the information and analysis" required by NEPA).

[FN96]. See Final EA at 79.

[FN97]. 42 U.S.C. § 4332(C).

[FN98]. 40 C.F.R. § 1508.27.

[FN99]. Andrus, 825 F.Supp. at 1495; seealso Public Citizen v. Department of Transportation, 316 F.3d 1002, 1023 (9th Cir. 2003) ("If [the agency's] action is environmentally 'significant' according to any of these criteria, then [the agency] erred in failing to prepare an EIS").

[FN100]. Anderson v. Evans, 314 F.3d 1006, 1017 (9th Cir. 2002).

[FN101]. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (other citations omitted).

[FN102]. See Final EA at 36 ("[i]n the absence of control efforts, impacts on submerged aquatic vegetation could be devastating") (emphasis added); see also Id. at 37 ("impacts on nontarget fish and wildlife could be substantial"); Id. at 41 (discussing "high level" of impacts in absence of mute swan control).

[FN103]. 40 C.F.R. § 1508.27 (b)(1) ("significant effect may exist [where] the effect will be beneficial").

[FN104]. See Nat'l Wildlife Fed'n v. Marsh, 721 F.2d 767, 782-783 (11th Cir. 1983); see also Sierra Club v. Marsh, 769 F.2d 868, 879-881 (1st Cir. 1985).

[FN105]. 40 C.F.R. § 1508.27(b)(3).

[FN106]. See, e.g., American Horse Prot. Ass'n v. Andrus, 608 F.2d 811, 814 (9th Cir. 1979) (EIS may be necessary for removal of wild horses from public lands because of significant effects both "on the rangelands [and] on the horses as well.") (emphasis added).

[FN107]. 40 C.F.R. § 1508.27(a).

[FN108]. Blue Mountains, 161 F.3d at 1212; Anderson v. Evans, 314 F.3d 1006, 1019 (9th Cir. 2002) (setting aside EA where the record showed that the "whale population in the local Washington area may be significantly affected" and because "[s]uch local effects are a basis for a finding that there will be a significant impact").

[FN109]. Comments of Patrick Hornberger (16 July 2003); comments of Bette Lucas (14 July 2003); comments of Angela Govatsos (14 July 2003).

[FN110]. 40 C.F.R. § 1508.27(b)(4) and (5).

[FN111]. Department of the Interior, U.S. Fish and Wildlife Service, Final Environmental Assessment (EA) for the Management of Mute Swans in the Atlantic Flyway at 36.

[FN112]. Id. at 77.

[FN113]. See Anderson, 314 F.3d at 1018-1020 (finding hunting five gray whales "sufficiently uncertain and controversial to require the full EIS protocol" because the "possible impact" of the hunt in the local area is in dispute"); National Parks & Conserv'n Ass'n v. Babbitt, 241 F.3d 722, 733 (9th Cir. 2001) ("[t]he Park Service's lack of knowledge does not excuse the preparation of an EIS; rather it requires the Park Service to do the necessary work to obtain it") (emphasis added).

[FN114]. Department of the Interior, U.S. Fish and Wildlife Service, Final Environmental Assessment (EA) for the Management of Mute Swans in the Atlantic Flyway at 44.

[FN115]. FONSI at 1.

[FN116]. 40 C.F.R. § 1508.27(b)(6).

[FN117]. NRDC v. Herrington, 768 F.2d 1355, 1430 (D.C. Cir. 1985) (emphasis added).

[FN118]. See FONSI at 1-2 ("mute swan will not be extirpated" and "will have no effect on the viability of U.S., North American, or worldwide populations of the mute swan").

[FN119]. See Anderson, 314 F.3d at1019 (setting aside decision to forego preparation of an EIS for the taking of five gray whales); Greenpeace v. Evans, 688 F.Supp. 579 (W.D. Wash. 1987) (rejecting National Marine Fisheries Service's finding that decision to issue permit to take a few dozen killer whales was not "significant" within the meaning of the CEQ regulations).

[FN120]. See Department of the Interior, U.S. Fish and Wildlife Service, Final Environmental Assessment (EA) for the Management of Mute Swans in the Atlantic Flyway at 79, (explaining that the USFWS has "initiated an environmental assessment of alternatives for managing mute swans in the Mississippi Flyway, and will prepare similar documents for the Pacific and (if deemed necessary) Central flyways in the near future").

[FN121]. Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987) (emphasis added); see also Natural Resource Defense Council v. Hodel, 865 F.2d 288, 297-98 (D.C. Cir. 1988); accord 40 C.F.R. § 1502.4 (NEPA process must include all "[p]roposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action.").

[FN122]. See FONSI at 1-2.

[FN123]. See 40 C.F.R. § 1508.7 (requiring agencies to consider "the incremental impact of the action when added to other past, present and reasonably foreseeable future actions," including "individually minor but collectively significant actions taking place over a period of time").

[FN124]. See, e.g., USFWS, Final EIS, Double-Crested Cormorant Management in the United States (2003) at ii (final EIS "for the purposes of reducing conflicts associated with cormorants"); 68 Fed. Reg. 47,603 (Aug. 11, 2003) (notice of availability of final EIS on double-crested cormorant management); 67 Fed. Reg. 13,792 (Mar. 26, 2002) (notice of public meetings regarding the USFWS's draft EIS for reducing the Canada Goose population).

[FN125]. Found. on Economic Trends v. Heckler, 756 F.2d 143, 154 (D.C. Cir. 1985) (agency violates NEPA when it fails to "directly address" whether an EIS needs to be prepared to resolve a scientific "controversy"); Public Citizen, 316 F.3d at 1027 (9th Cir. 2003) (agency "failed to demonstrate that its EA contains anything close to the statutorily required 'convincing statement of reasons' sufficient to support its decision not to prepare an EIS").

[FN126]. 42 U.S.C. § 4331(b).

[FN127]. Watkins, 808 F. Supp. at 858, quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); see also 40 C.F.R. § 1500.1(b) ("NEPA procedures must insure that environmental information is available to the public officials and citizens before decisions are made and before actions are taken" and that "public scrutiny [is] essential to implementing NEPA.") (emphasis added).

[FN128]. Watkins, 808 F. Supp. at 858.

[FN129]. NRDC v. Morton, 388 F. Supp. 829, 838-39 (D.C. Cir. 1974).

[FN130]. See Gerber v. Norton, 294 F.3d 173, 179 (D.C. Cir. 2002) (finding another USFWS notice and comment period deficient because the agency had not informed the public about a particular site at issue, explaining that "there could not have been a meaningful opportunity to comment on the application without a meaningful opportunity to comment on the site") (emphasis added).

[FN131]. Robertson, 490 U.S. at 349; Blue Mountains, 161 F.3d at 1213 (setting aside EA which "never identifie[d] the location of any of the proposed 18 miles or roads or the number of stream crossings"); Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998) (remanding EA that "fail[ed] to provide the public with a basis for evaluating the impact of the proposed [action]").

[FN132]. See Herrington, 768 F.2d at 1430; Found. on Economic Trends, 756 F.2d at 154 (agency's failure to consider the relevant CEQ "significance" factors renders its decision not to prepare an EIS unlawful).

[FN133]. See Sierra Club v. Marsh, 769 F.2d 868, 881 (1st Cir. 1985) (agency's EA must consider the geographic character of the "locale").

[FN134]. See Half Moon Bay Fishermen's Marketing v. Carlucci, 857 F.2d 505, 510 (9th Cir. 1988) ("Without establishing the baseline conditions which exist in the vicinity of [the site of the proposed action] before [the action] begins, there simply is no way to determine what effect the [action] will have on the environment and, consequently, no way to comply with NEPA.").

[FN135]. 40 C.F.R. § 1508.27(b)(3) (emphasis added); NRDC, 388 F. Supp. at 840, quoting Calvert Cliffs Coordinating Committee v. Atomic Energy Commission, 449 F.2d 1109, 1113 (D.C. Cir. 1971) ("[a] programmatic statement, unrelated to individual geographic conditions, does not permit the 'finely tuned and systematic balancing analysis' mandated by NEPA").

[FN136]. Herrington, 768 F.2d at 1430.

[FN137]. Heckler, 756 F.2d at 154.

[FN138]. Colony Federal Savings & Loan Ass'n v. Harris, 482 F. Supp. 296, 304 (W.D. Pa. 1980) (emphasis in original) (citations omitted).

[FN139]. 40 C.F.R. § 1500.1(b) (emphasis added).

[FN140]. See 68 Fed. Reg. at 39593.

[FN141]. 40 C.F.R. § 1500.2(d); SMS Data Products Group, Inc. v. U.S., 853 F.2d 1547, 1553-54 (Fed. Cir. 1988).

[FN142]. 747 F.2d 1240, 1247 (9th Cir. 1984).

[FN143]. See also Wroncy v. BLM, 777 F. Supp. 1546, 1550 (D. OR. 1991) (TRO granted based on lack of adequate comment period); accord. (Friends of Walker Creek Wetlands v. BLM, 19 ELR 20852, 20854 (D. Or. 1988) (finding agency's EA "did not adequately provide for public participation to the extent practicable" and ordering a 45 day public comment period on an EA)).

[FN144]. 40 C.F.R. § 1508.9(b). See Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir. 1988) ("consideration of alternatives is critical to the goals of NEPA even where a proposed action does not trigger the EIS process") (emphasis added); Sierra Club v. Watkins, 808 F.Supp. 852, 870 (D.D.C. 1991); see also 42 U.S.C. § 4332(2)(E) (requiring agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources").

[FN145]. Department of the Interior, U.S. Fish and Wildlife Service, Final Environmental Assessment (EA) for the Management of Mute Swans in the Atlantic Flyway at 77.

[FN146]. Id. (emphasis added).

[FN147]. Comments of D.J. Schubert (16 July 2003) at 3 ("FWS has failed to evaluate... the impact of pollution and increased water temperatures on [SAV]"); Comments of Bette Lucas (3 July 2003) ("SAV would be better protected if dragging for crabs by commercial crabbers were... made illegal").

[FN148]. Sierra Club v. Watkins, 808 F. Supp. at 873.

[FN149]. See Dubois v. Dep't of Agriculture, 102 F.3d 1273, 1288 (1st Cir. 1996) (because the agency did not "rigorously explore" all reasonable alternatives its action is unlawful under NEPA); Greenpeace v. Evans, 688 F.Supp. at 586 (setting aside agency permit to take killer whales because the agency "did not study, develop, or describe alternatives to the proposed research which would not involve the use of such controversial invasive methods," but which would achieve the research purpose).

[FN150]. 40 C.F.R. § 1502.14(c) (2004); see also NRDC v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1972) (rejecting federal government's "conten[tion] that the only 'alternatives' required for discussion under NEPA are those which can be adopted and put into effect by the official or agency issuing the [NEPA] statement").

[FN151]. Department of the Interior, U.S. Fish and Wildlife Service, Final Environmental Assessment (EA) for the Management of Mute Swans in the Atlantic Flyway at 1.

[FN152]. See Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664, 669 (7th Cir. 1997) (emphasis added) ("[a]n agency cannot restrict its analysis to those alternative means by which a particular applicant can reach his goals" but, rather, "the evaluation of alternatives mandated by NEPA is to be an evaluation of alternative means to accomplish the general goals of an action.").

[FN153]. 50 C.F.R. § 21.41(a), (b)(1) (2004).

[FN154]. See MDNR Application at 3 (identifying the "Chesapeake Bay and Maryland counties that abut tidal waters, Harford, Baltimore, Anne Arundel, Calvert, Prince George's, St. Mary's, Cecil, Kent, Queen Anne's, Caroline, Talbot, Dorchester, Worcester, Wicomico and Somerset Counties").

[FN155]. MDNR Permit at § 10.

[FN156]. 50 C.F.R. § 21.41(b)(1); see also 39 Stat. 1702, Art. VII (1916) (migratory birds may only be killed under certain "extraordinary conditions," i.e., where the birds have "become seriously injurious to the agricultural or other interests in any particular community") (emphasis added).

[FN157]. 50 C.F.R. §§ 21.41(b)(2), (3).

[FN158]. Comments of Dr. Bette Stallman (on file with author).

[FN159]. 39 Stat. 1702, Art. VII.

[FN160]. Mute Swan Management Plan at 11.

[FN161]. Department of the Interior, U.S. Fish and Wildlife Service, Final Environmental Assessment (EA) for the Management of Mute Swans in the Atlantic Flyway at 7.

[FN162]. See 50 C.F.R. § 13.12(a)(2) (applicant must describe the [l]ocation where the requested permitted activity is to be conducted") (emphasis added).

[FN163]. USFWS, Final Environmental Assessment of an Action to Issue a Migratory Bird Depredation Permit for the Take of Cormorants on Lake Ontario Islands, New York at 4-8 (May 1999).

[FN164]. Id. at 4.

[FN165]. See Id. at 5 (Mute swans "probably influences the availability of SAV" and "probably consume nutrient storage overwintering structures (tubers) which probably has a long-term impact"); id. ("mute swans can reduce the availability of certain wetland plant species, which can ultimately reduce the carry capacity of wetlands").

[FN166]. Motor Vehicle Mfrs. Assoc. of the United States v. State Farm, 463 U.S. at 43; Jost, 194 F.3d at 85 ("[t]he requirement that agency action not be arbitrary and capricious includes a requirement that the agency adequately explain its result").

[FN167]. Id. (emphasis added); Am. Lung Ass'n. v. EPA, 134 F.3d at 392 ("judicial review can occur only when agencies explain their decisions with precision").

[FN168]. See Petroleum Communications, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994) ("Where the agency has failed to provide a reasoned explanation, or where the record belies the agency's conclusion, we must undo its action."); Beno v. Shalala, 30 F.3d 1057, 1073 (9th Cir. 1994) ("we cannot infer an agency's reasoning from mere silence").

[FN169]. Id.

[FN170]. State Farm, 463 U.S. at 43; American Lung Ass'n, 134 F.3d at 392 (an agency must "cogently explain why [it] has exercised [its] discretion in a given manner").

[FN171]. See Sierra Club v. Babbitt, 15 F. Supp. 2d 1274, 1282 (S.D. Ala. 1998) (setting aside FWS "take" permit where "the Administrative Record is devoid of any rational basis upon which the FWS could have reasonably relied" in setting the amount of off-site "mitigation" required).

[FN172]. Convention for the Protection of Migratory Birds, Aug. 16, 1916, U.S. - Gr. Brit., 39 Stat. 1702.

[FN173]. See Id. Article VII (stating that depredating birds may be killed where the "proper authorities" determine that "extraordinary conditions" exists such that birds are "seriously injurious" to "the agricultural or other interests in any particular community"); 16 U.S.C. § 704 (a) (authorizing "the Secretary of the Interior" to "determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, taking, capture, killing [and] possession" of migratory birds).

[FN174]. See Nat. Parks and Conservation Ass'n v. Stanton, 54 F. Supp. 2d 7, 18 (D.D.C. 1999) (holding that the Park Service "cannot, under the unlawful delegation doctrine, completely shift its responsibility to administer [a park] to a private actor").

[FN175]. See Petroleum Communications Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994).

[FN176]. See e.g. Japan Whaling Ass'n., 478 U.S. 230, n.4.

[FN177]. Fund for Animals v. Lujan, 962 F.2d 1391, 1396 (9th Cir. 1992).

[FN178]. USFWS, Final Environmental Assessment of an Action to Issue a Migratory Bird Depredation Permit for the Take of Cormorants on Lake Ontario Islands, New York at 30 (May 1999).

[FN179]. See Amoco Prod. Co. v. Village of Gambrell, 480 U.S. 531, 545 (1987) ("Environmental injury, by its nature, can seldom be adequately remedied by money damages and... the balance of harms will usually favor the issuance of an injunction to protect the environment."); Humane Society of the United States v. Hodel, 840 F.2d 45, 52 (D.C. Cir. 1988) (plaintiffs have protectable interests in federal activities which "deplet[e] the supply of animals and birds" in an area).

[FN180]. See e.g., Animal Legal Defense Fund v. Glickman, 154 F.3d 426, 433 (D.C. Cir. 1998) (en banc) ("This court's precedents... specifically recognizes that people have a cognizable interest in viewing animals free from inhumane treatment.").

[FN181]. See Clark, 27 F. Supp.2d at 14 (emphasis added); see also Lujan, 962 F.2d at 1397 (plaintiffs injured by viewing the killing of bison outside Yellowstone National Park).

[FN182]. USFWS, Final Environmental Assessment of an Action to Issue a Migratory Bird Depredation Permit for the Take of Cormorants on Lake Ontario Islands, New York at 15 (May 1999).

[FN183]. Clark, 27 F. Supp.2d at 14.

[FN184]. Id.

[FN185]. See City of Los Angeles v. NHTSA, 912 F.2d 478, 492 (D.C. Cir. 1990); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (NEPA ensures that "important effects will not be overlooked or underestimated only to be discovered after... the die [is] cast").

[FN186]. National Senior Citizens Law Center v. Legal Services Corp., 581 F. Supp. 1362, 1373 (D.C. Cir. 1984).

[FN187]. Fund for Animals v. Norton, 281 F. Supp. 2d 209, 237-38 (D.C. Cir. 2003) (emphasis added).

[FN188]. Jonathan McKnight, MDNR, quoted on "Morning Edition," National Public Radio, 12 Sept. 2003.

[FN189]. "What's Wrong with Exotic Species?" Mark Sagoff, Institute for Philosophy and Public Policy, http://www.puaf.umd.edu/IPPP/fall1999/exotic_ species.htm.

 

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