Mutes win big

From ANIMAL PEOPLE, December 2001:

WASHINGTON D.C.–A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on December 28 restored Migratory Bird Treaty Act protection to mute swans. Ruling for mute swan defender Joyce M. Hill, the appellate court reversed a district court verdict which would have allowed wildlife agencies to kill mute swans at will.

“Counsel for the Secretary [of the Interior] contended that the non-native character of the mute swan justified exclusion [from protection],” the appellate panel wrote. “However, no agency decision explains the definition of ‘native,’ whether the mute swan is native or non-native, and why the native or non-native character of a species is relevant under the statute and treaties. This is especially important, because Hill argues that other birds on the List of Migratory Birds are non-native under many common definitions.

“Government counsel also claimed that the mute swan’s destructive and aggressive nature support exclusion,” the panel added. “The Secretary points to nothing in the statute, treaties, or administrative record to support this conclusion. It is unclear how such a consideration could ever overcome a statutory requirement to the contrary.”

Wildlife agencies have sought to cull mute swans for nearly 20 years, as an alleged threat to the recovery of trumpeter swans, who were hunted almost to extinction. There are about 18,000 mute swans in the U.S., and around 25,000 trumpeters.

Most mute swans in the U.S. apparently descended from birds brought from Europe during the 19th century, but there is disputed fossil evidence that they inhabited the west coast before human settlement.

The Department of the Interior has not yet said if it will appeal the December 28 ruling. If the ruling stands, it could serve as a precedent to a challenge of the 1994 decision of the U.S. Fish and Wildlife Service to exclude nonmigratory giant Canada geese from MBTA protection, as allegedly not being part of the goose population that the 1916 legislation was meant to protect.

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