ELR Citation: ELR 20437
No(s). 00-5432 (D.C. Cir. Dec 28, 2001)

The court reverses a district court decision that the Secretary of the Interior properly excluded the mute swan from the list of migratory birds protected by the Migratory Bird Treaty Act (MBTA). The individual challenging the Secretary's decision to exclude the mute swan from the list of protected migratory birds argued that the United States-Canada treaty, which the MBTA enforces, defines migratory birds to include swans. Because mute swans are indeed swans, the treaty covers mute swans. The Secretary of the Interior, however, claimed that the MBTA is ambiguous in regard to the types of birds covered. Specifically, the Secretary argued that the MBTA does not define migratory birds, and while the United States-Canada treaty references all swans, its proclamation speaks only of birds that migrate between the United States and Canada. Because only some swans migrate between the United States and Canada or are native to the signatory nations, the Secretary concluded it would make no sense to include every swan species within the protective ambit of the MBTA.

The court first holds that the Secretary's argument is specious. It rests on a convoluted and strained attempt to find ambiguity where none appears. Thus, the court cannot presume the reasonableness of the agency's decision when the terms of the statute and treaty appear to be contrary to that decision and the agency has failed to justify its position. There is nothing to support the Secretary's arguments that the non-native character of the mute swan or the mute swan's destructive and aggressive nature justified its exclusion from the list. In fact, the agency record in this case is utterly silent on any basis, let alone any reasonable basis, to support the exclusion of mute swans from the list of migratory birds.

The full text of this decision is available from ELR (11 pp., ELR Order No. L-427).

Counsel for Appellant
Erik S. Jaffe
Law Offices of Erik S. Jaffe
5101 34th St. NW, Washington DC 20008
(202) 237-8165

Counsel for Defendants
Kathryn E. Kovacs
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000