New - click here for Final List of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply, 70 F.R. 12710-12716 (March 15, 2005).
The Consolidated Appropriations Act of 2005 from title alone appears to have little to do with the Mute Swan, the Great White Pelican, or even the Red-crested Cardinal. However, December 8th of 2004 marked the end to their protected status under the Migratory Bird Treaty Act (MBTA). This particular piece of legislation sneaked in under the Consolidated Appropriations Act and now leaves the determination of what species are protected under the MBTA to the United States Fish & Wildlife Service.
In May of 2004, the United State House of Representatives introduced a bill that amended the Migratory Bird Treaty Act (MBTA). The bill, sponsored by Representative Gilchrest (R-MD) and Senator Voinovich (R-OH), is known as the Migratory Bird Treaty Reform Act (MBTRA) and changed the MBTA such that non-native birds are excluded from protection under the Act. Only those birds considered native to the United States or its territories would be protected under the Act. In essence, this change to the law removed protection for some 94 species of birds currently protected as migratory species under the existing Treaty.
The Listing of Species
Prior to the change in law, some 836 species of birds are protected under the MBTA. (For a list, please see the Pacific Region U.S. Fish & Wildlife site at http://migratorybirds.fws.gov/intrnltr/mbta/mbtintro.html. The original list appears in Title 50 of the Code of Federal Regulations, Section 10.13 and has some taxonomic differences due to the age of the initial regulations). The inclusion of these species is based upon the four Conventions with other countries (Canada, Mexico, Great Britain, and Japan) that the United States entered into to protect birds that migrate across borders.
The MBTRA will exclude those species that are considered to exist in the United States solely as the product of intentional or unintentional human-assisted introduction. Since this change will affect rule-making by the Secretary of the Interior (the agency responsible for administering the listing of species under the Act), a notice was published in the Federal Register notifying the public of the change in species listings. According to the notice published in the Federal Register, there are four criteria used to determine which species are not covered under the MBTA:
(1) It belongs to a family of birds covered by the MBTA by virtue of that family's inclusion in any of the migratory bird conventions with Canada, Mexico, Russia, or Japan. . .
(2) There is credible documented evidence that it has occurred at least once in an unconfined state in the United States or its territories.
(3) All of its known occurrences in the United States can be confidently attributed solely to intentional or unintentional human-assisted introductions to the wild. . .
(4) There is no credible evidence of its natural occurrence in the United States unaided by direct or indirect human assistance. The native range and known migratory movements (if any) of the species combine to make such occurrence in the United States extremely unlikely, both historically and in the future. . .
70 FR 372, 372-373.
Thus, only species considered “native” in 1918 are included, despite the fact some of the Conventions with other countries were entered into after that date. It should be noted, however, that the list contained in the Federal Register is only a draft list and is non-exhaustive. Public comments concerning the proposed list were due on February 3, 2005.
On March 15, 2005, the Fish and Wildlife Service published the Final Rule of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply (70 F.R.12710 - 12716). This notice essentially captures the species previously listed in the draft list.
The Mute Swan Controversy
The concern over removing the protected migratory status is illustrated most compellingly by the controversy surrounding the mute swan. In the January Federal Register notice, the author notes that some fossil evidence shows that Cygnus paloregonus (the purported ancestor of the mute swan) have been reported in geological deposits. However, despite such evidence, the Fish & Wildlife Service would overrule a Court of Appeals case (Hill v. Norton, 275 F.3d 98 (D.C. Cir. 2001)) and exclude the mute swan because the current populations purportedly result from introduced stocks. This is contrary to the decision in Hill.
In Hill v. Norton, 275 F.3d 98 (D.C. Cir. 2001), the United States Court of Appeals for the District of Columbia Circuit ruled that the Canadian and Mexican conventions applied to mute swans, thereby invalidating the Fish and Wildlife Service's list of species covered by the MBTA that excluded mute swans.
The Government also concedes that under the literal terms of the most restrictive treaty - the Canada treaty - "swans," without limitation, are migratory birds and therefore presumptively within the protected class. Furthermore, Government Counsel acknowledged at oral argument that, because of the seasonal movements of some mute swans across the U.S.-Canada border, mute swans are undoubtedly "migratory birds."
Id. at 104.
Not only did the Service contend that the swans are not native to the United States, but it argued that their aggressive nature demanded exclusion from the list. The court was unconvinced by the Secretary's unsupported assertions:
. . . no agency decision explains the definition of "native," whether the mute swan is native or non-native, and most importantly, why the native or non-native character of a species is relevant under the statute and treaties.
Id. at 105.
Further, with regard to the consideration of the swan's supposed aggressive nature, the court added:
The Secretary points to nothing in the statute, treaties, or administrative record to support this conclusion, however. In fact, it is unclear how such a consideration could ever overcome a statutory requirement to the contrary.
Id. at 105-106.
The mute swan is said to be a source of nuisance and non-point pollution in the Chesapeake Bay. This controversy over the mute swans in the Chesapeake Bay became center stage when migratory bird advocates challenged the issuance of a depredation order by the Maryland Department of Natural Resources to cull the population of the swans. For a point-counterpoint discussion of the issue, please see, The Mute Swan Case, The Fund for Animals, et al. v. Norton, et al.: National, Regional and Local Environmental Policy Rendered Irrelevant by Animal Rights Activists, by Paul J. Cucuzzella 11 U. Balt. J. Envtl. L. 101 and Swan Song? Giving a Voice to Mute Swans in the Chesapeake Bay, by Michael Markarian Jonathan R. Lovvorn, Esq., 11 U. Balt. J. Envtl. L. 115.
Notably, nothing in the actual language of the MBTA or the conventions contains the restriction to include only native birds under its protection. Migratory birds by definition occur across borders and define the impetus behind the enactment of the MBTA. Most migratory bird advocates contend that the change in the law countermands the purpose and scope of the original treaty. Now with the law's passage, the effect on many previously federally protected species remains to be seen.