There is no central federal authority over exotics, but there are some laws that do apply when federal funds or authority crosses paths with exotic species.

U.S. Fish and Wildlife Service Information Leaflet regarding the Federal Protection of the Mute Swan 
– Prepared by the U.S. Fish and Wildlife Service (USFWS), Division of Migratory Bird Management, Arlington, Virginia, February 2002

A. Legal Background

Complaint Filed in U.S. District Court

On July 16, 1999, a complaint was filed with the U.S. District Court in the District of Columbia, claiming that the Secretary's failure to include the mute swan on the List of Migratory Birds protected under the Migratory Bird Treaty Act (MBTA)(16 United States Code [USC] 703-712, Ch. 128; July 13, 1918; 40 stat. 755) was arbitrary and capricious under the Administrative Procedure Act (USC Title 5, Part 1. Ch. 5, Subchapter 2).

Opinion of the U.S. District Court

The District Court found that the federal government's failure to protect the mute swan was causally linked to a diminished presence of the birds about plaintiff's property on the Eastern Shore of Maryland, that the decline in mute swans reduced plaintiff's aesthetic enjoyment, and that the decline "will be ameliorated if federal defendants include the bird under the MBTA." This finding established plaintiff's "standing" or right to pursue her claims in federal court.

On the merits of the case, however, the District Court found that the conventions underlying the MBTA impose conflicting obligations, thus creating an ambiguity with regard to whether the mute swan must be included on the list of protected migratory birds. Faced with this apparent ambiguity, the District Court held that "agency deference is the most plausible alternative" for not listing the mute swan and granted summary judgment in favor of the federal defendants.

Appeal to the U.S. Circuit Court of Appeals

Following the adverse judgment of the U.S. District Court, plaintiff appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The case was argued on November 14, 2001, and decided on December 28, 2001.Plaintiff argued that the case primarily presented the straightforward question of whether the mute swan is a swan and a member of the family Anatidae as those phrases are used in the conventions with Canada and Mexico.

Opinion of the U.S. Court of Appeals

The Court of Appeals assumed that there was some ambiguity in the language of the MBTA and the conventions as to whether the mute swan is a protected species, but indicated that it was highly skeptical that the plain language of those documents would permit exclusion of the mute swan. The Court noted that the mute swan is indeed a "swan" as referenced in the Canadian convention, as well as a member of the family Anatidae as referenced in both the Canadian and Mexican conventions.

However, the Court based its decision on its view that the USFWS failed to offer support for its position in the rulemaking that listed covered migratory birds. The Court noted that the federal defendants were unable to point to anything "in the statute, treaties, or administrative record" to support their arguments (i.e., the non-native status of the mute swan, its harmful effect on native flora and fauna, and potential effects on other treaty obligations) that the mute swan should be excluded from protection under the MBTA. In particular, they found that "no agency decision explains the definition of 'native,' whether the mute swan is native or non-native, and most importantly, why the native or non-native character of a species is relevant under the statute and treaties." The Court therefore vacated the list of covered birds codified at 50 CFR 10.13, insofar as the list excludes mute swans.

As a practical matter, decisions of the D.C. Circuit regarding federal regulations are effectively binding nationwide.

The complete text of the Appeals Court decision is available at http://www.II.georgetown.edu/Fed-Ct/Circuit/dc/opinions/00-5432a.html.

B. Implications for Management

Immediate and Long-Term Consequences for Mute Swan Management

A final rule for the next revision of the List of Migratory Birds protected by the MBTA (50 CFR 10.13) is now in preparation. We are assessing the ramifications of this decision and will determine what changes may need to be made to the draft final rule.

In the meantime, the technical effective date of the Circuit Court’s opinion is not entirely clear; it would probably be safest to consider it already in effect. In any case, once the judgment of the Court becomes effective, the prohibitions of the MBTA should be considered to apply to the mute swan. Therefore, take of mute swans will be prohibited except as authorized by the USFWS pursuant to regulation. Any prosecution for unauthorized take of mute swans will be subject to the enforcement discretion of the USFWS and the Department of Justice.

Appropriate management of migratory bird populations will still be possible in the short term. Specifically, the USFWS may pursue any or all of the following options:

1. Development of management plans for the mute swan in cooperation with State agencies and the Flyway Councils;
   

2. Establishment of hunting season frameworks for mute swans in cooperation with state agencies and the flyway councils (as a "swan" and a member of the Anatidae, the mute swan is automatically a "game bird" as defined in the MBTA and the conventions);
   

3. Issuance of depredation permits to state agencies and others allowing the take of depredating mute swans; and
   

4. Establishment of a depredation order allowing state agencies and others to take depredating mute swans without need of a federal permit.
   

5. There is a possibility that, at some point in the future, we could develop regulatory language to exclude non-native species such as the mute swan from the protection of the MBTA that would withstand a court challenge. To do so successfully, we would have to show that Congress intended for the MBTA to apply only to species native to the United States. As discussed above, the D.C. Circuit expressed significant skepticism as to whether this would be possible.

C.  Permitting Requirements

Once the judgment of the Circuit Court becomes effective, permits will be necessary to legally take, possess, transport, sell, purchase, barter, import, export, band, and mark mute swans. Banding and marking of mute swans can be permitted (50 CFR 21.22), as can scientific collecting (50 CFR 21.23), taxidermy (50 CFR 21.24), sale and disposal of captive-reared and properly marked birds (50 CFR 21.25), and special purpose actions (50 CFR 21.27).

Depredation permits (50 CFR 21.41) will be necessary to control or manage mute swans to protect crops or other interests being injured, such as personal property, human health and safety, or native plant and animal resources, including, but not limited to, those federally listed as endangered or threatened or listed as candidates for federal listing.

Issuance of permits must comply with the National Environmental Policy Act. Because of the possibility of future litigation regarding the issuance of any permit allowing take of mute swans, the USFWS should be careful to document contemporaneously its analysis of how issuance of the permit is consistent with the regulation at issue, the MBTA, and the underlying treaties.

Additionally, offices issuing permits authorizing activities involving live mute swans should consider including restrictive conditions so as to ensure that permitted activities do not facilitate expansion of the range or population of mute swans, such as: The release of live mute swans or their eggs into areas outside their existing range, or onto any federal lands, is strictly prohibited.

The Chesapeake 2000 Agreement

The Agreement (http://chesapeakebay.net/agreement.htm), signed by the Governors of Maryland, Pennsylvania, Virginia, the Mayor of the District of Columbia, Chesapeake Bay Commission, and the Environmental Protection Agency representing the federal government includes the following relevant goals:

Living Resources: Restore, enhance and protect the finfish, shellfish and other living resources, their habitats and ecological relationships to sustain all fisheries and provide for a balanced ecosystem.

Exotic Species: 

1. By 2001, identify and rank non-native, invasive aquatic and terrestrial species, which are causing or have the potential to cause significant negative impacts to the Bay’s aquatic ecosystem;

2. By 2003, develop and implement management plans for those species deemed problematic to the restoration and integrity of the Bay’s ecosystem. 

Vital Habitat Protection and Restoration: Preserve, protect and restore those habitats and natural areas that are vital to the survival and diversity of the living resources of the Bay and its rivers.

Submerged Aquatic Vegetation (SAV): Recommit to the existing goal of protecting and restoring 114,000 acres of SAV. 

1. By 2002, revise SAV restoration goals and strategies to reflect historic abundance, measured as acreage and density from the 1930s to the present. The revised goals should include specific levels of water clarity, which are to be met in 2010. Strategies to achieve these goals will address water clarity, water quality and bottom disturbance. 

2. By 2002, implement a strategy to accelerate protection and restoration of SAV        beds in area of critical importance to the Bay’s living resources. 

Executive Order 13112 of February 3, 1999 - Invasive Species Laws & Regulations  

Executive Order 13112 signed by President Bill Clinton directs each federal agency whose actions may affect the status of invasive species shall, to the extent practicable and permitted by law, to (1) identify such actions, and (2) subject to the availability of appropriations, and within Administrative budgets limits, use relevant programs and authorities to (i) prevent the introduction of invasive species; (ii) detect and respond rapidly to and control populations of such species in a cost-effective and environmentally sound manner; (iii) monitor invasive species populations accurately and reliably; (iv) provide for restoration of native species and habitat conditions in ecosystems that have been invaded; (v) conduct research on invasive species and develop technologies to prevent introduction and provide for environmentally sound control of invasive species; and (vi) promote public education on invasive species and the means to address them.

National Invasive Species Act

The National Invasive Species Act of 1996 (amends the Non-indigenous Aquatic Nuisance Prevention and Control Act of 1990) and creates the Aquatic Nuisance Species Task Force (ANSTF).  Although it was created to specifically deal with ballast water issues (zebra mussel), it does include other items.  It specifically mentions the Chesapeake Bay as in need of attention because it is the largest recipient of ballast water on the East Coast.  The Chesapeake Bay Program has an ex-officio member on the ANSTF.

In part, the purpose of the act includes the prevention of unintentional introduction and dispersal of nonindigenous species into the waters of the United States and to develop and carry out environmentally sound control methods to prevent, monitor and control unintentional introductions of nonindigenous species from pathways other than ballast water.

The ANSTF, under Sec. 1202(c)(2) Implementation - Whenever the ANSTF determines that there is a substantial risk of unintentional introduction of an aquatic nuisance species by an identified pathway and that the adverse consequences of such an introduction are likely to be substantial, the ANSTF shall, acting through the appropriate federal agency, and after an opportunity for public comment, carry out cooperative, environmentally sound efforts with regional, state and local entities to minimize the risk of such an introduction.

Under Sec. 1202 (e) Control - The ANSTF may develop cooperative efforts to control established aquatic nuisance species to minimize the risk of harm to the environment and the public health and welfare. The ANSTF can develop a control program to achieve a targeted level of control.

U.S. Fish and Wildlife Service Policy to Control Mute Swans on Federal Lands:

Letter from USFWS Director dated March 26, 1996, to USFWS Regional Directors directing all USFWS managers to take effective steps to control mute swans on lands under their jurisdiction to protect those habitats from degradation and destruction by mute swans. Further the managers were directed to increase public awareness as an integral part of the policy to control mute swans on USFWS lands. This policy affects management of swans on the USFWS Chesapeake Marshland National Wildlife Refuge Complex (Blackwater, Martin, Barren Island, Susquehanna, Bishops Head, and Spring Island) and Eastern Neck National Wildlife Refuge within the state. No state permit is needed by federal agencies to control swans on federal lands.

Maryland Senate Joint Resolution 15

A Senate Joint Resolution concerning Natural Resources - Mute Swans - Federal Agency Control Measures for the purpose of urging the U.S. Fish and Wildlife Service to act with expedience to craft and conduct appropriate regulatory processes which will allow Maryland to establish a method of controlling the mute swan population and to mitigate the mute swan population's impact permanently and statewide; urging the U.S. Department of the Interior to appeal a certain holding; and generally relating to certain federal agency measures to control the mute swan population.

Whereas, the bird species known as the mute swan is not native to the Chesapeake Bay; and

Whereas, surveys of the Chesapeake Bay indicate that the mute swan population is growing at an alarming rate, increasing from less than 100 birds in 1973 to nearly 4,000 in 1999; and

Whereas, mute swans negatively impact native species and habitats in parts of the Chesapeake Bay by displacing State-listed nesting waterbirds and removing large amounts of submerged aquatic vegetation which is vital to all life in the Bay; and

Whereas, mute swans have repeatedly disrupted efforts to restore submerged aquatic vegetation, obstructing progress toward the Chesapeake 2000 Agreement goal of restoring 114,000 acres of the vegetation by 2010; and

Whereas, the U.S. Court of Appeals for the District of Columbia ruled that mute swans are protected by U.S. Fish and Wildlife Service regulations governing activities involving direct contact with protected birds under the Migratory Bird Treaty Act; and

Whereas, the Maryland General Assembly passed House Bill 728 during the 2001 Legislative Session, requiring the Department of Natural Resources to establish a program to control the State's mute swan population; and

Whereas, the urgent need to plan and implement mute swan population control measures and to mitigate mute swan impacts increases exponentially each year; now therefore, be it 

Resolved by the General Assembly of Maryland, that the U.S. Fish and Wildlife Service is urged to act with expedience to craft and conduct appropriate regulatory processes which will allow Maryland to establish a method of controlling the mute swan population and to mitigate the mute swan population's impact permanently and statewide; and be it further 

Resolved, that the United States Department of the Interior is urged to appeal the holding of the U.S. Court of Appeals for the District of Columbia that declared the mute swan to be a migratory bird protected under international treaties; and be it further

Resolved, that a copy of this Resolution be forwarded by the Department of Legislative Services to the Honorable Parris N. Glendening, Governor of Maryland; the Honorable Thomas V. Mike Miller, Jr., President of the Senate of Maryland; the Honorable Casper R. Taylor, Jr., Speaker of the House of Delegates; the Honorable Barbara A. Mikulski, U.S. Senate, 709 Hart Senate Office Building, Washington, D.C. 20510; the Honorable Paul S. Sarbanes, U.S. Senate, 309 Hart Senate Office Building, Washington, D.C. 20510; the Honorable Wayne T. Gilchrest, U.S. Congress, 2245 Rayburn House Office Building, Washington, D.C. 20515; the Honorable Robert L. Ehrlich, Jr., U.S. Congress, 1632 Longworth House Office Building, Washington, D.C. 20515; the Honorable Benjamin L. Cardin, U.S. Congress, 2267 Rayburn House Office Building, Washington, D.C. 20515; the Honorable Albert R. Wynn, U.S. Congress, 434 Cannon Office Building, Washington, D.C. 20515; the Honorable Steny H. Hoyer, U.S. Congress, 1705 Longworth House Office Building, Washington, D.C. 20515; the Honorable Roscoe G. Bartlett, U.S. Congress, 2412 Rayburn House Office Building, Washington, D.C. 20515; the Honorable Elijah E. Cummings, U.S. Congress, 1632 Longworth House Office Building, Washington, D.C. 20515; the Honorable Constance A. Morella, U.S. Congress, 2228 Rayburn House Office Building, Washington, D.C. 20515; the Honorable Gale A. Norton, Secretary of the Interior, U.S. Department of the Interior, 1849 C Street NW, Washington, D.C. 20240; Mr. Marshall Jones, Director (Acting), U.S. Fish and Wildlife Service, 1849 C Street NW, Washington, D.C. 20240; and Mr. Jon Andrew, Chief, U.S. Fish and Wildlife Service, Division of Migratory Bird Management, 4401 N. Fairfax Drive, Arlington, VA 22203. 

Atlantic Flyway Council Policy (August 1, 1997) to Control Mute Swans in the Atlantic Flyway: 

The policy endorses the following actions: 

1. State and provincial wildlife agencies, if they do not already have the authority, should seek to gain authority over the sale and possession of mute swans and their eggs. 
   

2. The sale of mute swan adults, young or their eggs should be prohibited. 
   

3. States should seek to eliminate all importing and exporting of mute swans without a special purpose permit issued by the state wildlife agency. 
   

4. Mute swan captured due to nuisance complaints, sickness, or injury should be removed from the wild or be euthanized. 
   

5. Egg addling program where feasible should be encouraged. 
   

6. Both state and federal wildlife agencies should institute programs to prevent the establishment and or eliminate mute swans. 
   

7. States and provinces should seek to make the mute swan an unprotected species if this is not already the case. 
   

8. States should strive to manage mute swan populations at level that will have minimal impacts to native wildlife species or habitats.