United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2001 Decided December 28, 2001
No. 00-5432
Joyce M. Hill,
Appellant
v.
Gale A. Norton, Secretary, United States
Department of the Interior, et al.,
Appellees
Appeal from the United States District Court
for the Districtof Columbia
(No. 99cv01926)
---------
Erik S. Jaffe argued the cause and filed the briefs for
appellant.
Kathryn E. Kovacs, Attorney, United States Department of
Justice, argued the cause for appellees. With her on the
brief were John C. Cruden, Acting Assistant Attorney Gener-
al, Jeffrey Dobbins and Larry M. Corcoran, Attorneys.
Before: Edwards and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Edwards.
Edwards, Circuit Judge: The Migratory Bird Treaty Act
("MBTA"), 16 U.S.C. ss 703-712 (2000), extends protection to
all birds covered by four migratory bird treaties, which, in
relevant part, define migratory birds to include the family
Anatidae. Congress has delegated authority to the Secretary
of Interior ("Secretary") to implement the treaties covered by
the MBTA. See 16 U.S.C. s 712(2). Under this authority,
the Secretary has published lists of protected migratory
birds.
The instant case arose when appellant Joyce Hill filed a law
suit pro se in District Court claiming that the Secretary's
regulation violated the MBTA in excluding mute swans from
the List of Migratory Birds promulgated at 50 C.F.R. s 10.13
(2000). The District Court rejected Hill's claim and granted
summary judgment in favor of the Secretary. Hill now
appeals from that adverse judgment.
The disposition of this case is very nearly governed by
Chevron step one. See Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984). This is so
because the plain meaning of the statute and the applicable
treaties strongly indicates that mute swans are qualifying
migratory birds under the MBTA. We hesitate, however, to
decide this case on Chevron step one grounds, because of the
odd regulatory scheme created by the MBTA which refers to
four different treaties to glean a single substantive definition
of migratory birds and the absence of any agency pronounce-
ment on the specific issue before the court. We therefore
assume, arguendo, that the disputed agency action is not
positively foreclosed by the plain meaning of the statute.
Even indulging in such an assumption, however, the Secre-
tary's position fails under Chevron step two. The Secretary
points to nothing in the MBTA, treaties, or administrative
record to support the exclusion of mute swans from the List
of Migratory Birds. And the statute and relevant treaty
support Hill's claim that mute swans should be included on
the list. Accordingly, we reverse the judgment of the District
Court on Hill's MBTA claim, grant judgment for appellant,
and vacate the Secretary's List of Migratory Birds, codified
at 50 C.F.R. s 10.13, insofar as the list excludes mute swans.
We affirm the judgment of the District Court rejecting Hill's
complaint resting on the National Environmental Policy Act
("NEPA"). We agree with the trial court that the NEPA
claim is meritless.
I. Background
A. Mute Swans
Mute swans - scientifically titled cygnus olor - are undis-
puted members of the family Anatidae. Mute swans in the
United States probably descend from European birds intro-
duced for ornamental purposes beginning in the mid-19th
century. Michael A. Ciaranca, et al., Mute Swan, The Birds
of North America No. 273, 1 (1997). Mute swans generally do
not migrate long distances, making only "short-distance sea-
sonal movements" to find ice-free water. Id. at 3. They are
"highly territorial" and can treat other species with "direct
antagonism." Id. at 10. Indeed, the Government claims that
mute swans "occupy habitat and consume food used by migra-
tory, endangered, and threatened species." Keith M. Weaver
Decl. p 16, reprinted in Joint Appendix ("J.A.") 24. There is
also information to suggest that mute swans cause ecological
damage: "As an exotic, feral species, the Mute Swan's effects
on native ecosystems are a concern. Potential effects range
from overgrazing aquatic vegetation to displacing native wa-
terfowl." Ciaranca, supra, at 2. See also Mem. from Rowan
W. Gould, Acting Director of Fish and Wildlife Service, to
Regional Directors 1 (Mar. 24, 1995), reprinted in J.A. 79 ("If
uncontrolled, mute swans pose a serious threat to the ecologi-
cal integrity of many areas, including the National Wildlife
Refuge System and other Federal lands committed to the
maintenance of natural wildlife diversity.").
Generally, state governments have assumed responsibility
for the management of mute swan populations. Recently,
however, Department of the Interior ("DOI") officials at the
Blackwater National Wildlife Refuge secured a permit from
the Maryland Department of Natural Resources to kill up to
50 mute swans per year. DOI officials claim to have taken
only ad hoc measures to control mute swan populations, and
they assert that "no concerted effort to eradicate mute swans
from any refuge has been undertaken by the [Fish and
Wildlife Service]." Ronald E. Lambertson Decl. p 8, reprint-
ed in J.A. 67.
B. Statutory and Regulatory Background
The MBTA states that,
[u]nless and except as permitted by regulations made as
hereinafter provided in this subchapter, it shall be unlaw-
ful ... to pursue, hunt, ... [or] kill ... any migratory
bird ... included in the terms of the conventions be-
tween the United States and Great Britain [on behalf of
Canada] ... , the United States and the United Mexican
States ... , the United States and the Government of
Japan ... , and the ... United States and the Union of
Soviet Socialist Republics.
16 U.S.C. s 703. The MBTA does not define "migratory
bird" but merely refers to the treaties for a definition. The
Secretary, however, has declared that:
Migratory bird means any bird, whatever its origin and
whether or not raised in captivity, which belongs to a
species listed in s 10.13.
50 C.F.R. s 10.12. Section 10.13, in turn, lists "all species of
migratory birds protected by the [MBTA]." 50 C.F.R.
s 10.13. The only swans on the List of Migratory Birds in
s 10.13 are trumpeter, tundra, and whooper swans. The
Secretary's regulations do not explain why mute swans are
excluded from the List of Migratory Birds.
The four treaties to which the MBTA refers each provide
different definitions of covered birds. The 1916 treaty with
Great Britain ("the Canada Treaty") broadly defines migrato-
ry birds to include "Anatidae or waterfowl, including brant,
wild ducks, geese, and swans." Convention for the Protection
of Migratory Birds, Aug. 16, 1916, art. I, s 1(a), U.S.-Gr.
Brit., 39 Stat. 1702. The Proclamation to the Canada Treaty
refers to birds that migrate across national borders:
Whereas, Many species of birds in the course of their
annual migrations traverse certain parts of the United
States and the Dominion of Canada; and
Whereas, Many of these species are of great value ...
but are nevertheless in danger of extermination through
lack of adequate protection during the nesting season or
while on their way to and from their breeding grounds.
Id. Canada and the United States amended the 1916 treaty
with a 1995 Protocol that revised the definition of migratory
birds to include "Anatidae, or waterfowl (ducks, geese and
swans)." Protocol Amending the 1916 Convention for the
Protection of Migratory Birds in Canada and the United
States, Dec. 14, 1995, art. I, s 1, U.S.-Can., Sen. Treaty Doc.
104-28.
The 1936 treaty with Mexico also defines migratory birds
broadly to include "Familia Anatidae." Convention for the
Protection of Migratory Game Birds and Game Mammals,
Feb. 7, 1936, art. IV, U.S.-Mex., 50 Stat. 1311. The introduc-
tory Proclamation to the Mexico Treaty refers to "migratory"
birds without regard to their origin:
Whereas, some of the birds denominated migratory, in
their movements cross the United States of America and
the United Mexican States, in which countries they live
temporarily;
Whereas it is right and proper to protect the said
migratory birds, whatever may be their origin, in the
United States of America and the United Mexican States,
in order that the species may not be exterminated.
Id.
The 1972 treaty with Japan defines migratory birds more
specifically:
(a) The species of birds for which there is positive evi-
dence of migration between the two countries from the
recovery of bands or other markers; and
(b) The species of birds with subspecies common to both
countries or, in the absence of subspecies, the species of
birds common to both countries. The identification of
these species and subspecies shall be based upon speci-
mens, photographs or other reliable evidence.
Convention for the Protection of Migratory Birds and Birds
in Danger of Extinction, and Their Environment, Mar. 4,
1972, art. II, s 1, U.S.-Japan, 25 U.S.T. 3331. The Japan
Treaty also contains an annex that specifically lists "species
defined as migratory birds." Id. at art. II, s 2(a). The only
swan identified in the annex is the whooper swan, cygnus
cygnus. Id. at Annex.
Finally, the 1976 treaty with the Soviet Union defines
migratory birds as:
(a) The species or subspecies of birds for which there is
evidence of migration between the Soviet Union and the
United States derived as a result of banding, marking or
other reliable scientific evidence; or
(b) The species or subspecies of birds, populations of
which occur in the Soviet Union and the United States
and have common flyways or common breeding, winter-
ing, feeding, or moulting areas, and for these reasons
there exists or could exist an exchange of individuals
between such populations. The identification of such
species or subspecies will be based upon data acquired by
banding, marking, or other reliable scientific evidence.
Convention Concerning the Conservation of Migratory Birds
and Their Environment, Nov. 19, 1976, art. I, s 1, U.S.-
U.S.S.R., 29 U.S.T. 4649. Similar to the Japan Treaty, the
Soviet Union Treaty includes an annex listing species by
name. Only three swan species - whooper, bewick's, and
whistling swans - are listed in the Annex. Id. at Annex.
The first regulations implementing the MBTA simply im-
ported the language of the Canada treaty. See, e.g., U.S.
Dep't of Agric., Bureau of Biological Survey, 11 Service and
Regulatory Announcements 1, 2 (Aug. 21, 1916) (defining
migratory birds, in relevant part, as "Anatidae or waterfowl,
including brant, wild ducks, geese, and swans"). After a few
rounds of statutory changes that placed regulatory authority
with the President and the Secretary of Interior, the Presi-
dent, by Executive Order, delegated sole authority to the
Secretary to promulgate regulations under the MBTA. See
Exec. Order No. 10,250, 16 Fed. Reg. 5,385 (June 7, 1951).
The Secretary initially maintained the established definition
of migratory birds. See, e.g., 50 C.F.R. s 10.1 (1961).
In 1965, the Secretary issued a Notice of Proposed Rule
Making which sought to, among other things, "further clarify
and define the term 'migratory birds' " by adding a require-
ment that birds be "indigenous to the United States." 30
Fed. Reg. 5,640 (Apr. 21, 1965). These regulations were
adopted in 1965, see 30 Fed. Reg. 7,571 (June 10, 1965), but
the indigenous requirement was short-lived. Two years later,
the Secretary amended the MBTA regulations by adding a
definition of migratory birds that did not include the indige-
nous requirement. See 32 Fed. Reg. 10,855 (July 25, 1967)
(printing new 50 C.F.R. s 1.11). This new definition did not,
however, replace the old definition, thus leaving the regula-
tions with two different definitions of migratory birds.
These dual definitions remained in place until 1973, when
the Secretary deleted 50 C.F.R. s 1.11 and changed the
definition of migratory birds to include
all birds, whether or not raised in captivity, included in
the terms of the [migratory bird] conventions between
the United States and any foreign country.
38 Fed. Reg. 22,015, 22,016 (Aug. 15, 1973). The Secretary
also published a list of covered migratory birds, 50 C.F.R.
s 10.13, "[f]or reference purposes only." Id. at 22,017. The
only swans included on the final list were the trumpeter and
whooper swans. See 50 C.F.R. s 10.13 (1973).
The Secretary proposed revised regulations in 1984 that
added a different qualification to the List of Migratory Birds.
See 49 Fed. Reg. 23,197, 23,198 (June 5, 1984). The operative
definition of migratory birds remained the same, but the
Secretary proposed to "[a]dd species that are of regular
occurrence in the United States that were not included on the
last List," and also to "[d]elete species whose occurrence in
the United States is deemed accidental, i.e., the U.S. is
outside the species' normal range and occurrence is infre-
quent and irregular." Id. The Secretary adopted these
changes, see 50 Fed. Reg. 13,708 (Apr. 5, 1985), and the
regulations remained in effect until this lawsuit was filed.
C. Procedural Background
Appellant Hill, appearing pro se, filed a complaint in Dis-
trict Court on July 16, 1999, which was amended on July 30,
1999. Her principal claim was that the Secretary's failure to
include the mute swan on the List of Migratory Birds
protected under the MBTA was arbitrary and capricious
under the Administrative Procedure Act ("APA"). On Sep-
tember 27, 2000, the District Court granted summary judg-
ment for the federal defendants. The trial court rejected the
defendants' argument that Hill lacked standing to pursue her
claim. On this point, the District Court found that the
"Federal Defendants' failure to protect the mute swan under
the MBTA is causally linked to the diminished presence of
the swan in and about [Hill's] property on the Eastern Shore
of Maryland," that the decline in mute swans reduces Hill's
aesthetic enjoyment of her property, and that the decline
"will be ameliorated if Federal Defendants include the bird
under the MBTA." Hill v. Babbitt, Civ. Act. No. 00-01926,
slip op. at 5 (D.D.C. Sept. 27, 2000). On the merits, the trial
court found that the treaties underlying the MBTA impose
conflicting obligations, thus creating an ambiguity in the
MBTA with regard to whether mute swans must be included
on the list of protected migratory birds. Faced with this
purported ambiguity, the District Court held that "agency
deference is the most plausible alternative" and granted
judgment for the federal defendants. Id. at 13. The trial
court also ruled against Hill on her NEPA claim, holding that
she had introduced nothing to support the contention that the
government was obliged to conduct an Environmental Impact
Statement ("EIS") under the NEPA. Id. at 6 n.15. Hill filed
a notice of appeal on November 27, 2000.
II. Discussion
A. Jurisdiction
The Secretary no longer challenges Hill's standing to pur-
sue her claims in federal court, and with good reason. There
is no doubt that the District Court was correct in holding that
Hill satisfies the standing requirements of Article III. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., (TOC),
Inc., 528 U.S. 167, 183 (2000) ("environmental plaintiffs ade-
quately allege injury in fact when they aver that they use the
affected area and are persons 'for whom the aesthetic and
recreational values of the area will be lessened' by the
challenged activity." (quoting Sierra Club v. Morton, 405 U.S.
727, 735 (1972))); Wabash Valley Power Ass'n, Inc. v. FERC,
268 F.3d 1105, 1113 (D.C. Cir. 2001) (holding that if injury is
traceable to agency decision and a favorable decision by the
court will nullify the action that gave rise to injury, then
plaintiff has satisfied causation and redressability require-
ments of Article III standing).
Because the MBTA does not create a private right of action
or otherwise provide a process for judicial review, the Secre-
tary's disputed failure to include the mute swan on the List of
Migratory Birds can only be challenged by Hill under the
APA. Though the APA does not directly grant subject
matter jurisdiction to the federal courts, see Califano v.
Sanders, 430 U.S. 99, 105 (1977), challenges brought under
the APA fall within the reach of the general federal jurisdic-
tion statute, 28 U.S.C. s 1331. Road Sprinkler Fitters Local
Union 669 v. Herman, 234 F.3d 1316, 1319 (D.C. Cir. 2000).
As Hill notes,
This case primarily presents the straight-forward ques-
tion whether the Mute Swan (Cygnus olor) is a member
of the family anatidae as that phrase is used in two
treaties between the United States and, respectively, the
United Kingdom (on behalf of Canada) and Mexico, and
hence are covered as a protected species under the
Migratory Bird Treaty Act (MBTA), 16 U.S.C. s 703 et
seq. The Department of the Interior has excluded Mute
Swans from a regulatory list of species that it deems
protected by the MBTA. 50 C.F.R. s 10.13. Such ex-
clusion has led to numerous adverse actions - including
killing and egg destruction - against Mute Swans, thus
injuring those who, like plaintiff, derive immense aesthet-
ic and cultural value from the presence of Mute Swans in
our environment.
The case presents the further question whether the
conduct of the Federal Defendants adverse to Mute
Swans constitutes "major Federal action[]" requiring
preparation of an Environmental Impact Statement
(EIS) pursuant to the National Environmental Policy Act
(NEPA). 42 U.S.C. s 4332(2)(C).
Br. for Appellant at 3-4. The District Court had subject
matter jurisdiction under 28 U.S.C. s 1331 to hear these
claims, and this court has jurisdiction pursuant to 28 U.S.C.
s 1291. We will address the two disputed issues in turn.
B. The MBTA and the Treaties
The MBTA covers all migratory birds, as defined by the
four cited treaties with Canada, Mexico, Japan, and the Soviet
Union. The Government concedes that the most restrictive
treaty definition of migratory birds - i.e., the one found in the
Canada treaty - governs the disposition of this case. See
Alaska Fish & Wildlife Fed'n v. Dunkle, 829 F.2d 933, 941
(9th Cir. 1987) (holding that "[t]he United States-Canada
Convention is the most restrictive of the four treaties, and all
of the Secretary's regulations must be in accord with that
treaty"). The Government also concedes that under the
literal terms of the most restrictive treaty - the Canada
treaty - "swans," without limitation, are migratory birds and
therefore presumptively within the protected class. Further-
more, Government Counsel acknowledged at oral argument
that, because of the seasonal movements of some mute swans
across the U.S.-Canada border, mute swans are undoubtedly
"migratory birds." Finally, no party doubts the authority of
the Secretary, under s 712(2) of the MBTA, to issue regula-
tions that create and refine lists of migratory birds, such as
the list promulgated at 50 C.F.R. s 10.13. The only MBTA
issue before this court, therefore, is whether the Secretary
was justified in excluding the mute swan from the List of
Migratory Birds.
Under the familiar Chevron analysis, "the reviewing court
must first exhaust the traditional tools of statutory construc-
tion to determine whether Congress has spoken to the precise
question at issue." Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044,
1047 (D.C. Cir. 1997) (quotations and citations omitted). The
parties, unsurprisingly, disagree over the meaning of the
MBTA. Hill argues that a simple syllogism decides this case:
the operative treaty defines migratory birds as "swans";
mute swans are, indeed, swans; and, therefore, the treaty
covers mute swans. The Secretary, on the other hand, claims
that the statute's purported simplicity actually ensconces its
ambiguity: the MBTA does not define migratory birds; while
the Canada Treaty references all swans, its Proclamation
speaks only of birds that migrate between the U. S. and
Canada; though swans are at home all over the world, only
some swans migrate between the U.S. and Canada or are
native to the signatory nations; therefore, it would make no
sense to include every swan species within the protective
ambit of the MBTA. And, of course, the Secretary claims
that any statutory ambiguity is properly resolved pursuant to
the agency's delegated authority to regulate under the
MBTA.
Hill clearly has the better of this argument, for the statute
appears as plain as she suggests. The Secretary's argument
is specious: it rests on a convoluted and strained attempt to
find ambiguity where none appears. Absent some limiting
language, references to "swans" and "family Anatidae," as are
found in the Canada treaty, undisputably include mute swans.
We can discern no ambiguity. And the literal terms of the
statute and treaty do not produce nonsensical results, as the
Government suggests. Rather, the disposition of the princi-
pal issue in this case is very nearly governed by Chevron step
one, and that disposition favors appellant Hill.
Because this case implicates several aged treaties about
which the Secretary has said virtually nothing, we hesitate to
decide the matter under Chevron step one. This hesitation
comes in part from our recognition of the rule that a court
must pay "great weight" to "the meaning given [to treaties]
by the departments of government particularly charged with
their negotiation and enforcement." Kolovrat v. Oregon, 366
U.S. 187, 194 (1961). In this case, however, we have nothing
more than the Secretary's List of Migratory Birds, with
nothing to explain why mute swans are excluded from the list.
Thus, in a situation in which we would normally look to the
Government for guidance in assessing the meaning of disput-
ed treaties, the record is barren. We could, of course, simply
apply Chevron step one in Hill's favor, for the Canada treaty
and the MBTA, together, support her claim. Instead, we will
give the Government the benefit of the doubt, at least for
now, and analyze the case under Chevron step two. In other
words, because the Secretary has yet to address the issue at
hand, we will assume, arguendo, that the disputed agency
action is not positively foreclosed by the plain meaning of the
statute. We do not mean to say, however, that the Secretary
can overcome the apparent plain meaning of the statute and
the treaties if and when the Secretary offers an explanation
for the List of Migratory Birds. See Prod. Workers Union of
Chicago v. NLRB, 793 F.2d 323, 328 (D.C. Cir. 1986) ("When
the intent of Congress is clear ... the court must give effect
to the intent of Congress regardless of the agency's opin-
ion."). We leave that question for another day.
Turning to Chevron step two, we must determine "whether
the agency's answer is based on a permissible construction of
the statute." 467 U.S. at 843. In other words, we must defer
to the Secretary's interpretation of the MBTA only if it is
reasonable and consistent with the statutory purpose and
legislative history. See Bell Atl. Tel. Cos., 131 F.3d at 1049.
If the terms of the disputed statute (and, in this case, the
disputed treaties) militate against the agency's position, and if
the agency has offered no support for its decision, then the
agency decision cannot be upheld under Chevron step two.
This court cannot presume the reasonableness of an agen-
cy's decision when the terms of the statute (and treaties)
appear to be contrary to that decision and the agency has
failed to justify its position. Counsel for the Secretary of-
fered several arguments supporting the reasonableness of the
mute swan's exclusion from the List of Migratory Birds: the
mute swan is not a native species, the mute swan's aggressive
and territorial nature causes harm to other protected species
and habitats, and extending protection to the mute swan
might affect other treaty obligations of the United States and
statutory obligations of the Secretary. We have no idea
whether these arguments are pertinent, and, if so, whether
they are compelling. It does not matter, however, for we do
not assume that the arguments of counsel are the same as the
Secretary's official position. 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. And, it is well understood that "[t]he
courts may not accept appellate counsel's post hoc rationaliza-
tions for agency action." Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962).
In arguments to this court, counsel for the Secretary
contended that the non-native character of the mute swan
justified the bird's exclusion from the list. However, 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. This complete absence of
support from the record is especially important here, because
Hill argues that other birds on the List of Migratory Birds
are non-native under many common definitions. See Reply
Br. for Appellant at 20-21. To uphold the Secretary's exclu-
sion on this ground would require this court to determine that
an unpublished, unmentioned, undefined, and uncertain factor
could reasonably exclude an otherwise qualified bird from
protection.
Government counsel also claimed that the mute swan's
destructive and aggressive nature support the mute swan's
exclusion from the List of Migratory Birds. The Secretary
points to nothing in the statute, treaties, or administrative
record to support this conclusion, however. In fact, it is
unclear how such a consideration could ever overcome a
statutory requirement to the contrary.
Likewise, Government counsel's argument that inclusion of
the mute swan on the List of Migratory Birds may affect the
Secretary's other statutory and treaty obligations is merit-
less. According to Counsel, the North American Wetlands
Conservation Act ("Conservation Act"), 16 U.S.C. ss 4401-
4414, indicates that Congress passed other legislation with
the "understanding that the MBTA and the migratory bird
treaties require the United States to protect only native
species." Br. of Appellees at 30. We disagree. The Conser-
vation Act defines migratory birds as "all wild birds native to
North America that are in an unconfined state and that are
protected under the [MBTA]" 16 U.S.C. s 4402(5). To quali-
fy as a migratory bird under the Conservation Act, two
separate, independent conditions must be met: the bird must
be a native wild bird and protected under the MBTA. The
Conservation Act does not in any way limit the definition of
migratory bird under the MBTA and, by placing an additional
limitation on the MBTA's definition, Congress expressly ex-
cluded some birds that qualify as migratory birds under the
MBTA from the Conservation Act's reach. Indeed, had
Congress evinced the understanding claimed by counsel, the
phrase "all wild birds native to North America" would merely
duplicate the MBTA's definition. Furthermore, including the
mute swan in the List of Migratory Birds does not prevent
the Secretary from controlling any potential harmful effects
caused by mute swans, because 16 U.S.C. s 704 delegates
authority to the Secretary to adopt regulations allowing the
"hunting, ... capture, [or] killing" of protected migratory
birds.
In sum, the Secretary points to nothing in the statute,
applicable treaties, or administrative record that justifies the
exclusion of mute swans from the List of Migratory Birds.
And, as noted above, both the MBTA and the Canada treaty
support Hill's claim that the mute swan must be included on
the list. The Secretary's decision therefore fails review un-
der Chevron step two.
C. National Environmental Policy Act
Appellant Hill also argues that the NEPA required the
Secretary to prepare an EIS with regard to its treatment of
mute swans. The NEPA requires an EIS for any "major
Federal action[] significantly affecting the quality of the
human environment." 42 U.S.C. s 4332(2)(C). In her brief
to this court, Hill identified several actions which she claims
qualify as major federal action: obtaining a permit from the
Maryland Department of Natural Resources ("MDNR") to
take up to 50 mute swans per year; cooperating with the
MDNR's Mute Swan management efforts, including assisting
in burn management programs that affect mute swan nesting
sites; cooperating with the Atlantic Flyway Council and
endorsing its recommendations to manage the mute swan
population; instructing Fish and Wildlife Regional Directors
to control mute swans on federal land; and deciding to
exclude mute swans from coverage under the MBTA.
Before the District Court, however, Hill only argued that
the Secretary was required to conduct an EIS under the
NEPA "for the trumpeter swan, before massive reintroduc-
tion efforts on a national level began" and before the "massive
killing and mutilation of mute swans" began. Amended Com-
plaint at 4-5. The District Court found, and Hill does not
now dispute, that the "Federal Defendants have submitted
uncontroverted declarations which indicate none of them has
engaged in an ongoing or proposed program to reintroduce
trumpeter swans to the Atlantic Flyway or to exterminate
mute swans." Hill v. Babbitt, slip op. at 6 n.15. Because the
two grounds for invocation of the NEPA raised below were
dismissed without a dispute of material fact below, Hill cannot
now identify any "major Federal actions" properly before this
court that would require the preparation of an EIS. Accord-
ingly, the District Court committed no error in dismissing
Hill's NEPA claims.
III. Conclusion
For the reasons given above, we reverse the judgment of
the District Court on Hill's MBTA claim, grant judgment for
appellant, and vacate the Secretary's List of Migratory Birds,
codified at 50 C.F.R. s 10.13, insofar as the list excludes mute
swans. We affirm the District Court's entry of summary
judgment on Hill's NEPA claims.
So ordered.