Hill v. Norton
| Decision Date | 28 December 2001 |
| Docket Number | No. 00-5432,00-5432 |
| Citation | 275 F.3d 98 |
| Parties | (D.C. Cir. 2001) Joyce M. Hill, Appellant v. Gale A. Norton, Secretary, United States Department of the Interior, et al., Appellees |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the Districtof Columbia (No. 99cv01926)
Erik S. Jaffe argued the cause and filed the briefs for appellant.
Kathryn E. Kovacs, Attorney, United States Department of Justice, argued the cause for appellees. With her on the brief were John C. Cruden, Acting Assistant Attorney General, Jeffrey Dobbins and Larry M. Corcoran, Attorneys.
Before: Edwards and Rogers, Circuit Judges, and Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Edwards.
The Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. 703-712 (2000), extends protection to all birds covered by four migratory bird treaties, which, in relevant part, define migratory birds to include the family Anatidae. Congress has delegated authority to the Secretary of Interior ("Secretary") to implement the treaties covered by the MBTA. See 16 U.S.C. 712(2). Under this authority, the Secretary has published lists of protected migratory birds.
The instant case arose when appellant Joyce Hill filed a law suit pro se in District Court claiming that the Secretary's regulation violated the MBTA in excluding mute swans from the List of Migratory Birds promulgated at 50 C.F.R. 10.13 (2000). The District Court rejected Hill's claim and granted summary judgment in favor of the Secretary. Hill now appeals from that adverse judgment.
The disposition of this case is very nearly governed by Chevron step one. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). This is so because the plain meaning of the statute and the applicable treaties strongly indicates that mute swans are qualifying migratory birds under the MBTA. We hesitate, however, to decide this case on Chevron step one grounds, because of the odd regulatory scheme created by the MBTA which refers to four different treaties to glean a single substantive definition of migratory birds and the absence of any agency pronouncement on the specific issue before the court. We therefore assume, arguendo, that the disputed agency action is not positively foreclosed by the plain meaning of the statute.
Even indulging in such an assumption, however, the Secretary's position fails under Chevron step two. The Secretary points to nothing in the MBTA, treaties, or administrative record to support the exclusion of mute swans from the List of Migratory Birds. And the statute and relevant treaty
support Hill's claim that mute swans should be included on the list. Accordingly, we reverse the judgment of the District Court on Hill's MBTA claim, grant judgment for appellant, and vacate the Secretary's List of Migratory Birds, codified at 50 C.F.R. 10.13, insofar as the list excludes mute swans. We affirm the judgment of the District Court rejecting Hill's complaint resting on the National Environmental Policy Act ("NEPA"). We agree with the trial court that the NEPA claim is meritless.
Mute swans scientifically titled cygnus olor are undisputed members of the family Anatidae. Mute swans in the United States probably descend from European birds introduced for ornamental purposes beginning in the mid-19th century. Michael A. Ciaranca, et al., Mute Swan, The Birds of North America No. 273, 1 (1997). Mute swans generally do not migrate long distances, making only "short-distance seasonal movements" to find ice-free water. Id. at 3. They are "highly territorial" and can treat other species with "direct antagonism." Id. at 10. Indeed, the Government claims that mute swans "occupy habitat and consume food used by migratory, endangered, and threatened species." Keith M. Weaver Decl. p 16, reprinted in Joint Appendix ("J.A.") 24. There is also information to suggest that mute swans cause ecological damage: Ciaranca, supra, at 2. See also Mem. from Rowan W. Gould, Acting Director of Fish and Wildlife Service, to Regional Directors 1 (Mar. 24, 1995), reprinted in J.A. 79 ().
Generally, state governments have assumed responsibility for the management of mute swan populations. Recently, however, Department of the Interior ("DOI") officials at the Blackwater National Wildlife Refuge secured a permit from the Maryland Department of Natural Resources to kill up to 50 mute swans per year. DOI officials claim to have taken only ad hoc measures to control mute swan populations, and they assert that "no concerted effort to eradicate mute swans from any refuge has been undertaken by the [Fish and Wildlife Service]." Ronald E. Lambertson Decl. p 8, reprinted in J.A. 67.
The MBTA states that,
[u]nless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful ... to pursue, hunt, ... [or] kill ... any migratory bird ... included in the terms of the conventions between the United States and Great Britain [on behalf of Canada] ... , the United States and the United Mexican States ... , the United States and the Government of Japan ... , and the ... United States and the Union of Soviet Socialist Republics.
16 U.S.C. 703. The MBTA does not define "migratory bird" but merely refers to the treaties for a definition. The Secretary, however, has declared that:
Migratory bird means any bird, whatever its origin and whether or not raised in captivity, which belongs to a species listed in 10.13.
50 C.F.R. 10.12. Section 10.13, in turn, lists "all species of migratory birds protected by the [MBTA]." 50 C.F.R. 10.13. The only swans on the List of Migratory Birds in 10.13 are trumpeter, tundra, and whooper swans. The Secretary's regulations do not explain why mute swans are excluded from the List of Migratory Birds.
The four treaties to which the MBTA refers each provide different definitions of covered birds. The 1916 treaty with Great Britain ("the Canada Treaty") broadly defines migratory birds to include "Anatidae or waterfowl, including brant, wild ducks, geese, and swans." Convention for the Protection of Migratory Birds, Aug. 16, 1916, art. I, 1(a), U.S.-Gr. Brit., 39 Stat. 1702. The Proclamation to the Canada Treaty refers to birds that migrate across national borders:
Whereas, Many species of birds in the course of their annual migrations traverse certain parts of the United States and the Dominion of Canada; and Whereas, Many of these species are of great value ... but are nevertheless in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds.
Id. Canada and the United States amended the 1916 treaty with a 1995 Protocol that revised the definition of migratory birds to include "Anatidae, or waterfowl (ducks, geese and swans)." Protocol Amending the 1916 Convention for the Protection of Migratory Birds in Canada and the United States, Dec. 14, 1995, art. I, 1, U.S.-Can., Sen. Treaty Doc. 104-28.
The 1936 treaty with Mexico also defines migratory birds broadly to include "Familia Anatidae." Convention for the Protection of Migratory Game Birds and Game Mammals, Feb. 7, 1936, art. IV, U.S.-Mex., 50 Stat. 1311. The introductory Proclamation to the Mexico Treaty refers to "migratory" birds without regard to their origin:
Whereas, some of the birds denominated migratory, in their movements cross the United States of America and the United Mexican States, in which countries they live temporarily;
Whereas it is right and proper to protect the said migratory birds, whatever may be their origin, in the United States of America and the United Mexican States, in order that the species may not be exterminated.
The 1972 treaty with Japan defines migratory birds more specifically:
(a) The species of birds for which there is positive evidence of migration between the two countries from the recovery of bands or other markers; and (b) The species of birds with subspecies common to both countries or, in the absence of subspecies, the species of birds common to both countries. The identification of these species and subspecies shall be based upon specimens, photographs or other reliable evidence.
Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, Mar. 4, 1972, art. II, 1, U.S.-Japan, 25 U.S.T. 3331. The Japan Treaty also contains an annex that specifically lists "species defined as migratory birds." Id. at art. II, 2(a). The only swan identified in the annex is the whooper swan, cygnus cygnus. Id. at Annex.
Finally, the 1976 treaty with the Soviet Union defines migratory birds as:
(a) The species or subspecies of birds for which there is evidence of migration between the Soviet Union and the United States derived as a result of banding, marking or other reliable scientific evidence; or
(b) The species or subspecies of birds, populations of which occur in the Soviet Union and the United States and have common flyways or common breeding, wintering, feeding, or moulting areas, and for these reasons there exists or could exist an exchange of individuals between such populations. The identification of such species or subspecies will be based upon data acquired by banding, marking, or other reliable scientific evidence.
Convention Concerning the Conservation of Migratory Birds...
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