The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Pending before this Court is plaintiffs' motion for a preliminary injunction to enjoin the U.S. Fish and Wildlife Service's ("FWS") final determination that mute swans are not protected by the Migratory Bird Treaty Act ("MBTA"). As a result of FWS's determination, the State of Maryland has declared its intention to begin killing up to 1,000 mute swans on or about June 20, 2005.*fn1 Therefore, plaintiffs contend that an injunction is necessary to prevent the irreparable harm to plaintiffs that would result if Maryland is permitted to carry out its plans. Upon consideration of plaintiffs' motion, the responses filed by the federal defendants and by defendant-intervenors, the replies thereto, oral argument held on June 3, 2005, and the entire record herein, the Court is persuaded that defendants' overwhelming likelihood of success on the merits outweighs any other equitable factors favoring plaintiffs, and therefore plaintiffs' motion must be DENIED.
Plaintiff Fund for Animals is a nonprofit organization dedicated to the protection of animals. The Fund for Animals has combined with another animal-protection organization, The Humane Society of the United States, and together the organizations have over 8 million members and constituents, including over 182,000 Maryland members. Compl. ¶ 4. These organizations "are dedicated to protecting wild and domestic animals by actively opposing those projects, plans, and events that result in the killing or cruel treatment of animals." Id. Plaintiff brings this action on its own behalf and on behalf of its members who regularly observe, photograph, and study mute swans and other migratory birds, and who would therefore suffer harm as a result of the killing of mute swans in Maryland pursuant to the FWS determination. Id. ¶ 5.
Plaintiff Patrick Hornberger lives on the Chesapeake Bay, in Trappe, Maryland, in an area in which a dozen or more mute swans can be found throughout the year. Id. ¶ 6. He enjoys viewing, hearing, feeding, and photographing the mute swans on and near his property, and has developed relationships with individual mating pairs. Id. In addition, he has traveled to several other areas within the State of Maryland to interact with mute swans, and plans to do so again in the future. Id. Mr. Hornberger has also been active in organizing a local effort to prevent the State of Maryland from killing mute swans. Id. ¶ 7.
Plaintiff Wanda Morton lives in Easton, Maryland, and owns a farm along the Wye River, a tributary of the Chesapeake Bay. Id. ¶ 9. She too enjoys viewing, hearing, feeding, and photographing mute swans on and near her property, and has become familiar with individual mating pairs, including naming several of them. Id. Ms. Morton fears that she may witness mute swans being harassed, injured, or killed as a result of FWS's determination.*fn2 Id. ¶ 11.
Defendant Gale Norton is the Secretary of the Department of the Interior, and is sued in her official capacity, based on her duty to ensure that the agencies within the Department comply with the requirements of the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. §§ 703-712 (2003), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq. (2003). Id. ¶ 14. Defendant Matthew Hogan is the Acting Director of the Fish and Wildlife Service, and is sued in his official capacity as the person directly responsible for FWS's determination. Id. ¶ 15.
Defendant-Intervenor Safari Club International ("SCI") is a nonprofit corporation incorporated in Arizona, with an office in Washington, D.C. Intervenors' Resp. to Pl. Mot. for a Prelim. Inj. at 2. SCI has 48,000 members; the organization's mission is to conserve wildlife, protect hunters, and educate the public on hunting and the use of hunting as a means of conservation. Id. at 2-3. Defendant-Intervenor Safari Club International Foundation ("SCIF") is a nonprofit incorporated in Nevada and it shares a similar mission with SCI. Id. at 3.
Finally, Defendant-Intervenor Ducks Unlimited ("DU") is an organization of men and women "who celebrate the traditions and heritage of sport hunting as an integral part of sound wildlife management." Id. at 5. DU's mission "is to conserve, restore, and manage wetlands and associated habitats primarily for North America's waterfowl." Id. DU supporters hunt in Maryland and other areas where they contend mute swans jeopardize native wildlife and habitat. Id. at 5-6.
The mute swan, Cygnus olor, is a nonnative species descended from birds imported from Europe to North America for ornamental purposes. See Hill v. Norton, 275 F.3d 98, 99 (D.C. Cir. 2001). There are approximately 14,000 mute swans in the "Atlantic Flyway," which is made up of 17 states along the Eastern Seaboard of the United States, ranging from Maine to Florida. See Fund for Animals v. Norton, 281 F. Supp. 2d 209, 214 (D.D.C. 2003)(internal citation omitted). It is widely contended that mute swans threaten native migratory, endangered, or threatened animal species, in part because they over-consume aquatic vegetation on which these species depend for survival. See Hill v. Norton, 275 F.3d at 99-100.
A. Migratory Bird Treaties and the Migratory Bird Treaty Act
The United States has entered into four treaties, also called Conventions, with other countries in order to protect and preserve migratory birds. The first of these Conventions was signed with Great Britain, on behalf of Canada, in 1916, and since then the U.S. has entered Conventions with Mexico, Japan, and Russia. Rather than list each species of bird covered by the Convention, the Conventions define the term "migratory bird" to include a number of bird families. Of particular relevance for purposes of plaintiffs' motion, the Canadian Convention includes in the definition of migratory birds, birds belonging to the family "Anatidae or waterfowl, including brant, wild ducks, geese, and swans" and the Mexican Convention defines migratory birds to include all birds belonging to the "Familia Anatidae." Pl. Mot. for a Prelim. Inj. at 3-4. See also Hill v. Norton, 275 F.3d 98, 100-01 (D.C. Cir. 2001)(providing a description and history of each treaty).
In 1918, Congress enacted the MBTA to implement the Canadian Convention; the MBTA has since been amended to include the other three Conventions. See Fund for Animals I, 281 F. Supp. 2d at 216 (citations omitted). The language of the MBTA is unequivocal, and prohibits, among other things, any killing of designated migratory birds [u]nless and except as permitted by regulations made as hereinafter provided in this subchapter, 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 . . . any migratory bird . . . included in the terms of the [conventions between the United States and Great Britain, Mexico, Japan, and Russia.].
The MBTA does not provide a definition of "migratory bird," but instead refers to the Conventions for the definition. Id. The MBTA authorizes the Secretary of the Interior to issue regulations permitting the taking of migratory birds, provided the regulations are consistent with the Conventions. 16 U.S.C. § 704; 712(2).
In 1973, pursuant to the authority vested in the Secretary of the Interior by the MBTA, the Secretary published a list of migratory birds protected by the Act; that list did not contain mute swans. Hill, 275 F.3d at 102. In 1999, Joyce Hill filed suit against the Secretary, claiming that the Secretary's decision to exclude mute swans from the list of covered birds was arbitrary and capricious and in violation of the Administrative Procedure Act ("APA"). Id. The district court deferred to the agency's determination and ruled for the federal defendants.
In 2001, the U.S. Court of Appeals for the District of Columbia Circuit reversed, finding under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) that "even assum[ing], arguendo, that the disputed agency action is not positively foreclosed by the plain meaning of the statute" the Secretary had shown nothing in the MBTA, the Conventions, or the administrative record that supported the agency's decision to exclude mute swans from the list of birds covered by the MBTA. Id. at 99. The Court of Appeals thus rested its decision to vacate the Secretary's List of Migratory Birds, to the extent the list excluded mute swans, on Chevron step two.*fn4 Id. at 106-07.
Prior to the U.S. Court of Appeals' 2001 ruling in Hill v. Norton, in which the Court of Appeals deemed mute swans to be protected by the Conventions and MBTA, primary responsibility for the management of mute swan populations fell to the states. See Hill v. Norton, 275 F.3d at 100. The federal Department of the Interior also engaged in management of mute swans on federal properties, including the Blackwater National Wildlife Refuge located in the State of Maryland, on an ad hoc basis. Id. at 100.
Following the Court of Appeals' ruling in Hill, the FWS began issuing permits authorizing the "take"*fn5 of mute swans to states requesting them for purposes of managing the mute swan population. Fund for Animals v. Norton, 281 F. Supp. 2d 209, 214-15 (D.D.C. 2003) ("Fund for Animals I"). On March 13, 2003, the State of Maryland applied to FWS for a permit authorizing it to "remove up to 1,500 adult and subadult mute swans" as part of "a comprehensive mute swan management plan that will be implemented in 2003." Id. On April 17, 2003, the FWS granted Maryland's request for a permit authorizing the killing of up to 1,500 mute swans. Id.
Shortly thereafter, plaintiff Fund for Animals commenced an action challenging the issuance of the Maryland permit. Fund for Animals v. Norton, Civil Action No. 03-1049 (D.D.C. 2003). The case was later voluntarily dismissed when Maryland agreed to temporarily surrender its permit pending preparation of a NEPA Environmental Assessment ("EA"). Id.
On August 7, 2003, FWS issued a "Finding of No Significant Impact" ("FONSI") and a Record of Decision ("ROD") memorializing its conclusion that the issuance of depredation permits as part of an integrated population management plan contemplating "lethal take" of mute swans, combined with egg addling,*fn6 pinioning,*fn7 sterilization, and live-trapping and relocation, would have no "significant impact on the human environment," and therefore preparation of an Environmental Impact Statement ("EIS") was unnecessary. 68 Fed. Reg. 47,084-85. On August 11, 2003, FWS granted Maryland's renewed application for a depredation permit, authorizing the state to kill up to 525 mute swans between August 27 and December 31, 2003.
Plaintiffs immediately challenged all permits issued pursuant to the EA and moved for injunctive relief, asking this Court to enjoin the State of Maryland from killing any mute swans pursuant to the August 11, 2003 depredation permit.
On September 9, 2003, this Court granted plaintiffs' request for a preliminary injunction, finding that "as a whole, [plaintiffs'] arguments present a 'substantial case on the merits' sufficient to warrant the grant of injunctive relief in light of plaintiffs' compelling showing of irreparable harm," and that defendants had not persuaded the Court that they would suffer substantial harm or that the public would suffer as a result of a preliminary injunction. See Fund for Animals v. Norton, 281 F. Supp. 2d 209, 225, 237 (D.C.C. 2003).
Following the Court's grant of a preliminary injunction, FWS withdrew all pending permits to take mute swans and agreed not to issue new permits to take mute swans without conducting a new environmental review ...