Hill, Joyce M. v. Norton, Gale A.

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.