Sea Grant Law Center
 

Court Enjoins Mute Swan Cull

Fund For Animals v. Norton, 281 F. Supp. 2d 209 (D.D.C. 2003).

Shannon McGhee, 2L1

The U.S. District Court for the District of Columbia determined there was substantial evidence to support a claim that the issuance of a depredation permit by the Fish and Wildlife Service (FWS) to the State of Maryland for the killing of 525 mute swans failed to meet requirements of the Migratory Bird Treaty Act (MBTA) and National Environmental Policy Act (NEPA) and thereby justified a preliminary injunction.

Background
The “Atlantic Flyways,” which is comprised of seventeen states along the Eastern Seaboard of the United States, is home to approximately 14,000 non-native mute swans. Under MBTA regulations, a depredation permit must be sought from FWS in order to legally “pursue, hunt, shoot, wound, kill, trap, capture, or collect” mute swans.2 Before any depredation permit is issued, FWS, under NEPA regulations, must assess all of the significant impacts a proposed action might have on the human environment.

However, through a “categorical exclusion”3 under NEPA, FWS issued Maryland a depredation permit without performing any type of environmental assessment. The state of Maryland was granted a permit authorizing the killing of up to 1,500 mute swans as part of “a comprehensive mute swan management plan” that would be implemented in 2003. The Fund for Animals, a wildlife protection organization, filed suit challenging Maryland’s permit. However, Maryland promised to voluntarily surrender its permit pending the preparation of an Environmental Assessment (EA) by FWS and the suit was dropped. On July 2, 2003, the FWS registered a Draft Environmental Assessment on the Management of Mute Swans in the Atlantic Flyway (Draft EA) for review, setting July 16, 2003 as the deadline for public comments.

After reviewing public comments, FWS issued a Final EA on August 7, 2003 concluding that mute swans were causing critical environmental damage to the underwater plant communities of Chesapeake Bay by consuming up to eight pounds per day of Submerged Aquatic Vegetation (SAV).4 The Final EA further explained the “taking” of mute swans as a method of minimizing such environmental damage would have no “significant impact on the human environment” and, therefore, an Environmental Impact Statement (EIS) was unnecessary. Maryland then renewed its depredation permit for the “taking” of 525 mute swans. Shortly thereafter, the Fund for Animals commenced an action asking the Court to enjoin the state of Maryland’s renewed depredation permit.

Standard of Review
On a motion for preliminary injunction, plaintiffs must demonstrate “(1) a substantial likelihood of success on the merits, (2) irreparable injury if the injunction is not granted, (3) that there will be no substantial injury to other interested parties, and (4) that the public interest would be served by the injunction.”5 No one factor, however is determinative.

Irreparable Harm
The Fund for Animals argued if all of the depredation permits from the Final EA were considered in the aggregate, irreparable harm to their aesthetic interests to view, interact with, study and appreciate mute swans would ensue because 86 percent of the mute swans in Maryland and 67 percent of the current mute swans in the Atlantic Flyway would be at risk of being killed.6 Plaintiffs also contended irreparable harm from the violation of their procedural rights under NEPA. The Maryland Department of Natural Resources (MDNR) refuted these claims, by arguing that: (1) Maryland or any state’s maximum “take” limits are adjusted upward or downward on an individual and annual basis, (2) plaintiffs failed to allege irreparable harm from the issuance of permits to other states in the Atlantic Flyway, and (3) plaintiffs presented no evidence of harm from the past killing of 1,700 mute swans in Maryland. In addition, MDNR contended the “taking” of 525 swans, a mere 14.5 percent reduction of the current mute swan population in Maryland from remote areas where plaintiffs neither travel nor live, would result in minimal or no irreparable harm.

The court found MDNR’s arguments unpersuasive, stating that the plaintiffs’ claim for irreparable harm was pursuant to the particular swans located in Maryland and not all swans in the Atlantic Flyway. Furthermore, the plaintiffs were claiming they would suffer not from the past killing of mute swans, but from the additional taking of 525 mute swans. The court concluded that, although a NEPA violation standing alone was insufficient to support a preliminary injunction, when that violation was combined with the plaintiffs’ other claim of aesthetic irreparable harm, plaintiffs adequately established the existence of irreparable harm absent a preliminary injunction.

Substantial Harm to Other Parties
MDNR further argued even if the plaintiffs demonstrated irreparable harm, the Chesapeake Bay and native wildlife would suffer greater harm by the daily degradation caused from the present mute swan population and its progeny. The court disagreed, noting the current 9.2 percent mute swan growth rate was easily manageable even if the agency’s course of action was delayed a year. MDNR officials explained that the supposed 10 percent consumption of SAV biomass by mute swans has a negligible bay-wide effect; thus the court held that an injunction delaying the “taking” of swans a few months to ensure the vindication of the public’s interest would surely not result in irreparable harm to the Chesapeake Bay. Finally, the court found MDNR’s immediate need for the taking of 525 mute swans to be a mere assertion that it would be “easier” to take swans now than later.

Likelihood of Success on the Merits
NEPA
The Fund for Animals argued that the FWS finding of no significant impact (FONSI) and its decision not to proceed with an EIS to further evaluate the environmental impacts of depredation permits were arbitrary and capricious. Under the Administrative Procedure Act (APA), FWS actions may only be overturned if they were arbitrary, capricious, or an abuse of discretion. Under this standard of review courts examine “(1) whether the agency took a ‘hard look’ at the problem; (2) whether the agency identified the relevant areas of environmental concern; (3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and (4) if there was an impact of true significance, whether the agency convincingly established that changes in the project sufficiently reduced it to a minimum.”7 MDNR contended that “by describing the proposed action, examining reasonable alternatives, considering environmental impacts, and providing a list of individuals and agencies consulted” in the Final EA all of NEPA’s requirements were met.

The court held the plaintiffs demonstrated a likelihood of success on the merits for their claim that FWS failed to involve the public “to the greatest extent possible” in taking a “hard look” at alternatives for managing Maryland’s mute swan population. The court reasoned that the public was given a total of only nine working days in the middle of the summer to review and submit comments on a Draft EA that lacked specific information, e.g., which local environments would be affected by the proposed action. The court noted that describing the location of the action as “covering 6000 square miles and 15 of 24 counties within the state,” did not translate into any greater specificity as to the effects on local mute swan populations.8 In addition, the court pointed out, the FWS assertion that it received and reviewed “thousands of comments” from 13 state wildlife agencies, 53 organizations, and 2,620 individuals in such a short period of time between July 16 and the July 31, 2003 deadline, as weighing more heavily for plaintiffs, i.e., FWS did not take the appropriate “hard look.”9

The court also found FWS’s post-hoc rationalization of issuing depredation permits prior to a Final EA unconvincing, stating that MDNR’s assertion that FWS actions are “entitled to a presumption of regularity” does not protect the agency from its obligation to perform a “thorough, probing, in-depth review” of the agency’s proposed course of action.

The Fund for Animals also successfully argued that although the “taking” of mute swans may have a minimal environmental impact on the entire state, FWS failed to evaluate the significant impacts, whether adverse or beneficial, at the local level. Additionally, the court reasoned that the “uncertainty as to the impact of a proposed action on a local population of a species, even where all parties acknowledge that the action will have little or no effect on broader populations, is ‘a basis for a finding that there will be a significant impact’ and setting aside a FONSI [finding of no significant impact].”10 Therefore, plaintiffs have shown a likelihood of success on the merits that the FWS decision to issue a FONSI was arbitrary and capricious.

The court found FWS had established a sufficient nexus between identifying the degradation of SAV by mute swans and its proposed action to correct it by reducing the mute swan population. Moreover, the court was not convinced that the FWS issuance of permits had created a precedent since the permits contemplated by the Final EA are reevaluated on an annual and individual basis. Similarly, the court ruled the plaintiffs failed to identify any scientific controversy of the effects of killing mute swans throughout Maryland or the “Atlantic Flyway” region. Nevertheless, the court found the plaintiffs raised “substantial questions” as to the existence of at least two significant factors, and therefore demonstrated a likelihood of success on the merits.

MBTA
MBTA regulations stipulate that migratory birds may only be killed pursuant to a depredation permit which states “the ‘location where the requested permitted activity is to be conducted,’ as well as a ‘description of the area where depredations are occurring,’ the ‘nature of the crops or other interests being injured,’ and the ‘extent of such injury.’ ”11 The Fund for Animals alleged that the FWS’s failure to ensure MDNR met MBTA requirements or to explain how such requirements were satisfied prior to the issuance of Maryland’s depredation permit amounted to arbitrary and capricious agency action.

The court held that although MDNR specified which public lands would be rendered “swan free” as well as provided a generalized description of the types of areas where “removal” activities would take place, MDNR failed to specify the localized and specific types of damage mute swans cause in those areas, nor did MDNR indicate the number of swans planned to be removed from each area. Furthermore, MDNR only chose the depredation permit to cover areas where mute swans are most likely to be found, not where the greatest extent of SAV damage is occurring. Finally, even though defendants assert an equally strong public interest in preservation and restoration of the Chesapeake Bay, they ultimately fell short of meeting the burden of establishing why their long-term goal could not be accomplished in the future. As a result, the court was persuaded that plaintiffs had a “substantial case on the merits,” that defendants failed to comply with MBTA standards, and therefore plaintiffs were entitled to injunctive relief.

Conclusion
The district court ruled that FWS failed to meet NEPA and MBTA requirements in its issuance of a depredation permit to the state of Maryland for the taking of 525 mute swans. The Court preliminarily enjoined MDNR from further acting on its depredation permit. (At the press time, according to Dennis O’Brien, a reporter for The Baltimore Sun, nothing has happened since this decision.)


Endnotes
1. Shannon is a second-year law student at the University of Georgia School of Law in Athens, Georgia.
2. 16 U.S.C. § 703 (2003).
3. Agencies may determine that certain actions qualify for a “categorical exclusion” from the requirements of NEPA if they find that the actions do not individually or cumulatively have a significant effect on the human environment. See 40 C.F.R. § 1508.4; 40 C.F.R. § 1507.3 (2003).
4. Fund for Animals v. Norton, 281 F. Supp. 2d 209, 215 (D.D.C. 2003).
5. Id. at 219.
6. Id.
7. Town of Cave Creek, Arizona v. Fed’l Aviation Ass’n, 325 F.3d 320, 327 (D.C. Cir. 2003); Sierra Club v. United States Dep’t of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985).
8. Norton, 281 F. Supp. 2d at 235-26.
9. Id. at 227.
10. Id. at 234.
11. 50 C.F.R. § 13.12(a)(2); 50 C.F.R. §§ 21.41(b)(1)-(3) (2003).

 

 
   
   
   
   
   
   
   
   



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