Environmental Law

• Author: International Law Group
• Pages: 226-227

Page 226

The U.S. has concluded several international conventions with Canada and Mexico to protect migratory birds. In 1918, the U.S. first implemented these conventions with the Migratory Bird Treaty Act (MBTA). 16 U.S.C. ßß 703-712. It makes it unlawful to hunt or kill migratory birds "included in the terms of the conventions." 16 U.S.C. Section 703(a). Congress subsequently amended the Migratory Bird Treaty Act for it to apply "only to migratory bird species that are native to the United States or its territories." 16 U.S.C. Section 703(b)(1).

The bird at issue in this case is the mute swan, which is not native to the U.S. It is probably a European species that was introduced in the U.S. for ornamental purposes. Before the amendment, the mute swan was covered by the MBTA, but the amendment arguably eliminated that protection.

In the Spring of 2005, the Maryland Department of Natural Resources informed the Humane Society that it would begin killing mute swans in the Chesapeake Bay because they endangered the ecosystem. The Fund for Animals, Inc., an affiliate of the Humane Society, and three individuals brought action, claiming that the mute swan is still protected under the MBTA. The district court held that the mute swan is no longer protected.

The U.S. Court of Appeals for the District of Columbia finds that the mute swan is not protected based on the plain meaning of the statute.

Page 227

Here, the parties agree that the mute swan is not a native migratory bird species. The Plaintiff claim that the amended statute confl icts with the conventions, and ambiguous statutes should not be interpreted to abrogate a treaty (meaning the conventions' protection of the mute swan). The Court disagrees. This canon only applies to ambiguous statutes, and this statute is not ambiguous. "The Constitution establishes that statutes enacted by Congress with the concurrence of the President (or over his veto) have no less weight than treaties made by the President with the advice and consent of two-thirds of the Senate. See U.S. CONST. art. II, ß 2, cl. 2; U.S. CONST. art. VI, cl. 2 ... Consistent with this doctrine, the Supreme Court has long recognized that a later-enacted statute trumps an earlier-enacted treaty to the extent the two confl ict. This is known as the last-in-time rule. See Whitney v. Robertson, 124 U.S. 190, 194 (1888) (if self-executing treaty and statute 'are inconsistent, the one last in date will control the other') ... At the...