The Fund for Animals, Inc. v. Kempthorne

• Decision Date: 15 December 2006
• Docket Number: No. 05-5352.,05-5352.
• Parties: THE FUND FOR ANIMALS, INC., et al., Appellants v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 872

472 F.3d 872

THE FUND FOR ANIMALS, INC., et al., Appellants v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Appellees.

No. 05-5352.

United States Court of Appeals, District of Columbia Circuit.

Argued October 5, 2006.

Decided December 15, 2006.

Appeal from the United States District Court for the District of Columbia (No. 05cv00777).

Joshua R. Stebbins argued the cause for appellants. With him on the briefs were Howard M. Crystal and Eric R. Glitzenstein.

Kathryn E. Kovacs, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief was Ellen Durkee, Attorney, U.S. Department of Justice.

Douglas S. Burdin and Anna M. Seidman were on the brief for appellees Safari Club International, Safari Club International Foundation, and Ducks Unlimited.

Before: ROGERS, GARLAND and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

Concurring opinion filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge.

The United States is a party to international conventions with Canada and Mexico for the protection of migratory birds. Congress has implemented those conventions through the Migratory Bird Treaty Act, a statute first passed in 1918. The statute makes it unlawful to hunt or kill migratory birds "included in the terms of the conventions." 16 U.S.C. § 703(a). In 2001, this Court concluded that the migratory birds protected under the Act included the mute swan. See Hill v. Norton, 275 F.3d 98 (D.C.Cir.2001).

After the Hill decision, Congress enacted the Migratory Bird Treaty Reform Act. The Reform Act amends the Migratory Bird Treaty Act so that the statute applies "only to migratory bird species that are native to the United States or its territories." 16 U.S.C. § 703(b)(1). As the parties here agree, the mute swan is not native to the United States or its territories. As a result, the amended statute by its terms no longer prohibits the hunting or killing of the mute swan.

The plaintiffs in this case have advanced a variety of arguments why the amended Migratory Bird Treaty Act nonetheless continues to protect mute swans. We reject plaintiffs' contentions. The text of the statute is plain: The amended Migratory Bird Treaty Act does not ban the hunting or killing of non-native migratory bird species, including mute swans.

I

1. In 1916, the United States entered into a convention with Canada for the protection of migratory birds; in 1936, the United States entered into a similar convention with Mexico. Convention for the Protection of Migratory Birds, U.S.-Gr. Brit., Aug. 16, 1916, 39 Stat. 1702; Convention for the Protection of Migratory Birds and Game Mammals, U.S.-Mex., Feb. 7, 1936, 50 Stat. 1311. See generally Hill v. Norton, 275 F.3d 98, 100-01 (D.C.Cir.2001) (surveying those treaty provisions, as well as two later conventions with Japan and the former Soviet Union). The Canada and Mexico conventions expressly cover the family Anatidae. Canada Convention, art. I, § 1(a), 39 Stat. at 1702; Mexico Convention, art. IV, 50 Stat. at 1313. That family includes the mute swan, thought to be a European species originally brought to the United States for ornamental purposes. Hill, 275 F.3d at 99; see Draft List of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply, 70 Fed.Reg. 372, 373-74 (Jan. 4, 2005) (surveying evidence of mute swan origin).

In 1918, Congress passed and President Wilson signed the Migratory Bird Treaty Act. The Act's prohibition has remained largely the same since enactment. Unless authorized by regulations administered 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, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions ....

16 U.S.C. § 703(a) (emphasis added); see Migratory Bird Treaty Act, ch. 128, 40 Stat. 755, 755 (1918) (statute as originally enacted).

Starting in the 1970s, the Secretary of the Interior regularly published a list of species protected under the Act. The list did not include the mute swan. A citizen eventually challenged the Secretary's decision not to protect the mute swan. In Hill, we concluded that the Secretary's interpretation of the Migratory Bird Treaty Act was not reasonable when measured against the statutory text: The statute covers birds "included in the terms of the conventions" themselves, and we stated that the Canada convention "undisputably include[s] mute swans." Hill, 275 F.3d at 104. Although the Secretary argued that the mute swan was not protected because it was not native to the United States, we stated that the Secretary pointed to "nothing in the statute, applicable treaties, or administrative record" to support an exclusion for non-native species. Id. at 105-06. The text of the Migratory Bird Treaty Act and the Canada convention's references to "swans" weighed against such an exclusion and meant that the Secretary's interpretation was not reasonable. Id. at 106. (The opinion focused solely on the Canada convention because it imposed the strictest limitation on the hunting or killing of migratory birds. Id. at 103-04.)

2. In 2004, after the Hill decision, Congress passed and President Bush signed the Migratory Bird Treaty Reform Act. See Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, Div. E, Title I, § 143, 118 Stat. 2809, 3071-72 (2004) (codified at 16 U.S.C. § 703). The Reform Act amended the Migratory Bird Treaty Act's prohibition on killing or hunting migratory birds so that the statute "applies only to migratory bird species that are native to the United States or its territories." 16 U.S.C. § 703(b)(1). The Reform Act further defined the term "native to the United States or its territories" to mean "occurring in the United States or its territories as the result of natural biological or ecological processes." Id. § 703(b)(2)(A). And subject to certain exceptions not relevant here, the Reform Act provided that "a migratory bird species that occurs in the United States or its territories solely as a result of intentional or unintentional human-assisted introduction shall not be considered native to the United States or its territories ...." Id. § 703(b)(2)(B). Congress directed the Secretary of the Interior to issue within 90 days of the Reform Act's enactment and after public comment "a list of all nonnative, human-introduced bird species to which the Migratory Bird Treaty Act does not apply." Consolidated Appropriations Act, Div. E, Title I, § 143(c) (citation omitted).

The Reform Act also expressed Congress's apparent disagreement with this Court's Hill decision as to the meaning of the migratory bird conventions: "It is the sense of Congress that the language of this section is consistent with the intent and language of the 4 bilateral treaties implemented by this section." Id. § 143(d). In other words, Congress indicated its belief that the Canada convention and the other three migratory bird conventions did not cover non-native species such as the mute swan.

Consistent with the Reform Act, the Fish and Wildlife Service, which is part of the Department of the Interior, promptly published and sought comment on a draft list of non-native species that would not be protected under the statute. See Draft List of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply, 70 Fed.Reg. 372 (Jan. 4, 2005). The list excluded the mute swan from protection. Id. at 373-74. The Service pointed to the scientific and historical evidence that the species is not native to this continent. "All existing populations of the mute swan in North America," the Service noted, "are derived from introduced stocks that were released or escaped at different localities and in different years and eventually established feral populations." Id. at 373.

The Humane Society of the United States, an animal welfare organization, submitted comments opposing the Service's designation. The Service treated those comments as a petition for rule-making under the Administrative Procedure Act to change the mute swan's designation, which the Service denied. See Final List of Bird Species to Which the Migratory Bird Treaty Act Does Not Apply, 70 Fed. Reg. 12,710, 12,713 (Mar. 15, 2005). The Service published its final rule in March 2005, and the list excluded mute swans. Id. at 12,714-15.

The Maryland Department of Natural Resources then informed the Humane Society of its intention to begin killing adult mute swans in the Chesapeake Bay in the spring of 2005. Maryland had previously concluded that such killing was necessary because the mute swan population, which had surged "dramatically between 1986 and 1999," now posed a danger to the bay ecosystem. WILDLIFE & HERITAGE SERV., MD. DEP'T OF NATURAL RES., MUTE SWANS IN MARYLAND: A STATEWIDE MANAGEMENT PLAN 4 (2003). Maryland determined that the mute swan population consumed and disrupted large quantities of underwater plants that "protect water quality ... [,] prevent erosion," and provide food and shelter for fish, shellfish, invertebrates, and other birds indigenous to the Bay. Id. at 10; see also Hill, 275 F.3d at 99 (noting "information to suggest that mute swans cause ecological damage").

3. The Fund for Animals, Inc., is an affiliate of the Humane Society. In April 2005, the Fund and three individuals sued the Secretary under the Administrative Procedure Act, 5...