Full Title Name:  The Mute Swan Case, the Fund for Animals, et al. v. Norton, et al: National, Regional, and Local Environmental Policy Rendered Irrelevant by Animal Rights Activists

Paul J. Cucuzzella [FNd1]

Copyright © 2004 University of Baltimore School of Law; Paul J. Cucuzzella (Reprinted with Permission)

An obstruction of sound environmental policy occurred this past summer when a small but vocal animal rights organization, The Fund for Animals, used the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. - the bedrock federal legislation meant to ensure environmental stewardship of all federal activities - to prevent the U.S. Fish and Wildlife Service (the "USFWS") and the Maryland Department of Natural Resources ("DNR") from implementing a plan to cull the population of mute swans in the Chesapeake Bay. There is no question that feral mute swans (cyngus olor) are harmful to the native habitats of the Bay and other Atlantic Coast aquatic ecosystems. Mute swans - natives of Asia and present only in the Unites States because they were brought here to grace the estates, parks and ponds of Nineteenth and early-Twentieth Century aristocracy - are prolific breeders which consume vast quantities of submerged aquatic vegetation ("SAV" or "Bay grasses") and crowd out native waterfowl and other aquatic species. In August, 2003, at the same time that the State of Maryland and Chesapeake Bay Foundation were warning that oxygen depletion in Bay waters was creating dead zones, the Fund for Animals was arguing in Federal court that the invasive mute swans should be protected, to the detriment of Bay grasses, so that a few bird enthusiasts and activists would not experience decreased opportunities to view mute swans as a result of the proposed removal by DNR in 2003 of a fraction of the Bay's total mute swan population. It thus became evident that animal rights activists should not be confused with environmentalists: the Fund for Animals' efforts to enjoin the lethal removal of mute swans from the Bay has prevented DNR from pursuing one aspect of a multifaceted effort towards protecting the water quality, health and vitality, of the Bay.

*102 THE HISTORY OF MUTE SWAN POPULATION GROWTH AND MANAGEMENT IN NORTH AMERICA

Mute swans were first introduced into the United States from Europe and Asia in the late 1800s as ornamental figures and as a fashionable ways to grace estate ponds and public parks. Because of their elegance and aesthetic beauty, over the course of a century the mute swan became a frequent subject of children's literature, fairy tales, music and dance. Although initially intended to be kept in captivity, over time individual mute swans either escaped or were released into the wild and subsequently established thriving populations in wildlife areas throughout the Atlantic Flyway and elsewhere (the Atlantic Flyway is the area that stretches along the eastern seaboard from Canada to Florida over which many species of migratory birds traverse annually).

The estimated near-13,000 mute swans that presently reside within the Atlantic Flyway are concentrated in established populations in Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Maryland and Virginia. Maryland's population of mute swans - some 3,600 birds that live in and about the Bay - all descend from a herd of five birds that escaped from a private estate along the Miles River in Talbot County on Maryland's Eastern Shore during a spring storm in March of 1962.

Since their first release or escape into the wild, the growth rate of mute swan populations in the Atlantic Flyway has been striking. Although the Flyway-wide growth rate was relative low and stable for several decades prior to the mid-1980s, when the population was no greater than approximately 4,000 birds, from 1987 to 1999 the overall Flyway population increased suddenly and drastically to more than 13,000 birds. Periodic population surveys conducted since 1986 demonstrate that the mean annual growth rate Flyway-wide is 9.2 percent. Regionally, since 1986 mute swan populations grew by 25 percent in New England, 87 percent in the Mid-Atlantic, and an astounding 1,116 percent in the Chesapeake Bay and its Maryland and Virginia tributaries. In the Maryland portion of the Bay alone, the mean annual rate of growth from 1986 through 1999 was 23% - from 264 birds in 1986 to 3,955 birds in 1999. These growth rates result from the mute swans' prolific breeding habits: a breeding pair will produce on average 3.7 surviving and fledgling cygnets each year. Mute swans in the U.S. have no natural predator.

Wildlife managers from Atlantic Flyway states and the federal government have, over the past two decades, implemented various strategies to control expanding mute swan populations. These strategies have generally focused upon two objectives: (1) reducing mute swan birth rates and (2) reducing adult survival rates. Wildlife manage achieve reduce birth rates result primarily through a process known as egg addling wherein nested eggs are either shaken by hand or coted *103 with vegetable oil to prevent hatching. Lethal removal achieves reduced adult survival rates.

As evidenced by the steady growth in mute swan populations since the mid-1980s, the collective efforts of wildlife managers during the past two decades to control mute swan populations within the Atlantic Flyway - efforts that have largely fallen short of systematic lethal removals of adult mute swans - have in each instance failed to achieve population reductions goals. Although in some localities these efforts have worked to marginally decreased overall populations, in other localities the efforts have only slowed the dramatic expansion of populations. For instance, studies from Rhode Island, which has conducted the most aggressive mute swan egg addling program of any state, demonstrate that egg addling alone does not decrease swan populations. Between 1979 and 1998 wildlife managers in Rhode Island addled eggs in an average of 79% of all active mute swan nests. Despite these efforts, population surveys conducted between 1986 and 1999 show nearly an 80% increase in Rhode Island's mute swan population during that time period.

In Maryland, the combined efforts of over the past few years of egg addling by DNR and the lethal removal of small numbers of swans by the USFWS from national wildlife refuges have resulted in a slight reduction in the Bay population from about 4,000 birds in 1999 to about 3,600 birds in 2002. Population mapping conducted by DNR scientists, however, demonstrates that in order to simply keep the population within the Bay at or near its present levels, egg hatching must be reduced by 80% annually or annual survival rates must decrease by 20%. If the population is simply left unchecked - meaning no egg addling and no lethal removals - the mute swan population in the Bay will likely double every three to four years, reaching 20,000 swan within a decade.

MUTE SWANS ADVERSELY IMPACT NATIVE HABITATS.

The research and scientific record into the effects of non-native mute swans on native environs is both extensive and comprehensive. Studies prove that mute swans detrimentally impact the environment in three general ways: (a) decimation of submerged aquatic vegetation; (b) direct and indirect displacement of native wildlife; and (c) nuisance to commercial agriculture, human populations and water quality. DNR's concerns regarding mute swans are primarily the adverse effects that the birds have on Bay grasses and native wildlife. In December, 2001, noting the environmental problems associates with mute swan populations, the Chesapeake Bay Program - a collaborative between the Environmental Protection Agency, the Chesapeake Bay Commission, the Governors of the States of Maryland, Pennsylvania, and Virginia, and the District of Columbia - identified the mute swan as one of the priority species requiring regional management, *104 planning, and population control. In April, 2003, DNR finalized its Statewide Management Plan calling for the reduction, over time, of the Bay population of mute swans to the pre-1986 population of about 500 birds - a population at which the adverse ecological impacts of mute swans in the Bay were negligible.

Mute swans decimate established and emerging SAV beds.

Collectively, SAV is a term used to describe a variety of aquatic plants and algae that grow in freshwater environments. Healthy SAV beds, which support diverse communities of freshwater and marine organism, are of vital importance to aquatic ecosystems. SAV protects water quality from pollutants, introduces oxygen, prevents erosion, and offers food and shelter for fish, shellfish, invertebrates and waterfowl. A substantial reduction in abundance of SAV in the Bay and its tributaries over at least the past thirty years has seriously harmed water quality and aquatic bio-diversity in the Bay prompting the Chesapeake Bay Program to declare that the restoration and preservation of SAV is a primary goal for the overall protection and restoration of the Bay. See Collectively, SAV is a term used to describe a variety of aquatic plants and algae that grow in freshwater environments. Healthy SAV beds, which support diverse communities of freshwater and marine organism, are of vital importance to aquatic ecosystems. SAV protects water quality from pollutants, introduces oxygen, prevents erosion, and offers food and shelter for fish, shellfish, invertebrates and waterfowl. A substantial reduction in abundance of SAV in the Bay and its tributaries over at least the past thirty years has seriously harmed water quality and aquatic bio-diversity in the Bay prompting the Chesapeake Bay Program to declare that the restoration and preservation of SAV is a primary goal for the overall protection and restoration of the Bay. See http://www.chesapeakebay.net/agreement.htm.

Although not solely responsible for the depletion of SAV in the Bay - the primary culprit being nutrient and suspended sentiment runoffs - mute swan foraging and other activities undoubtedly contribute substantially to decreased SAV abundance and growth. It is near universally accepted in research circles both in the U.S. and in Europe - where mute swans are also considered invasive - that mute swans consume massive quantities of SAV, consume immature SAV seeds, and remove SAV biomass before plant maturation. Studies from Sweden have shown that mute swans consume 9.4 pounds of SAV per day, while studies from Rhode Island, Connecticut, the Netherlands, and elsewhere in Europe have shown similar rates of consumption. The 3,600 swans presently in the Bay consume some 10.5 million pounds of SAV annually, which is nearly 12% of the Bay's present SAV biomass. Moreover, adult swans tend to paddle the subtrate dislodging SAV in order to feed themselves and their cygnets. Paddling can result *105 in the destruction by one swan of as much as 20 pounds per day in addition to that which the swan consumes.

Mute swan impacts on SAV are exacerbated by the fact that these birds are generally non-migratory. They remain, for the most part, within established environs in the Bay and elsewhere year-round and, indeed, rarely move more than 30 miles during a lifetime. Consequently, the mute swans that reside in the Bay forage upon and disturb SAV year-round, most detrimentally during the SAV spring and summer growing season. This prevents the maturation of SAV beds and results in the loss of SAV abundance in waning years. By contrast, other swan and waterfowl species native to the Bay - including tundra swan, snow geese and Canada geese - are migratory and are only present within the Bay during wintering; they do not therefore disturb SAV during the critical growing season.

Demonstrable mute swan impacts on SAV beds are most pronounced within localized areas of high swan population densities. Presently, these localized areas of high swan densities are not found throughout the Bay, and therefore a great number of the Bays' SAV beds are left unaffected by mute swans. If, however, over time the mute swan is left to freely populate and expand its range - as would result if wildlife managers with DNR are prevented from egg addling and lethally removing adult swans - a larger number of areas with high population densities will emerge and consequently more localized areas within the Bay will experience catastrophic SAV impacts.

Mute swans crowd out native fish and wildlife.

Established populations of invasive mute swans in and about the Atlantic Flyway adversely affect the habitats of native fish and wildlife in two very distinct ways: (a) depletion of SAV reduces food supplies and available habitats; and (b) the aggressive nature of mute swans crowd out and displace native species. Increased foraging on SAV by mute swans during the spring and summer reduces the abundance of SAV as food sources for fall migrant waterfowl. Year-long foraging, and the collective and cumulative impacts caused thereby, ultimately reduces the carrying capacity of wetlands for native waterfowl. In Maryland, for instance, it has been documented that mute swan foraging upon wild celery plants and seeds has detrimentally impacted the food supply for wintering canvasbacks, a native duck. Moreover, since SAV beds provide important habitat for a myriad of aquatic species - including, for instance, varieties of fish, oysters and the commercially important blue crab - decreased SAV abundance and densities also decreases the habitat areas wherein these species can spawn and be protected from predators.

The mute swan is one of the world's most aggressive species of waterfowl and indeed larger than their counterparts, giving them a distinct advantage during aggressive interactions.They are fiercely *106 territorial by nature, and occupy and defend large areas - up to 15 acres - during nesting, brood rearing, and foraging. Consequently, mute swans in North America have displaced or killed through aggressive interactions numerous species of waterfowl and other wildlife: they have caused the nest abandonment of waterfowl such as common terns, Forster's terns, least terns, and black skimmers; killed scores of ducks and geese in central New York; and, in Maryland, killed mallard ducklings, Canada goose goslings, and tundra swan. One particularly significant event occurred in the late-1980s when an annual molting flock of some 600 to 800 mute swans decimated the nesting grounds of least terns and black skimmers - both State-Endangered species - in the Tar Bay area of Dorchester County, Maryland. The consequent declines in the populations of these two species were near catastrophic.

THE LEGAL AUTHORITY TO MANAGE MUTE SWAN POPULATIONS PRESENTLY RESTS WITH THE USFWS.

Prior to December of 2001, DNR regulated mute swans as a "wetland game bird" under the Maryland's Natural Resources Article. The Natural Resources Article gave DNR the authority to manage the mute swan population and implement population control efforts not inconsistent with the Article. However, DNR's legal authority to self-regulate the mute swan population, as well as the authority of wildlife agencies in other states to do the same, terminated on December 28, 2001 when the United States Court of Appeal for the District of Columbia determined that mute swans are federally protected under the Migratory Bird Treaty Act (the "MBTA"), 16 U.S.C. § 701 et seq., and subject to management by the USFWS alone. See Hill v. Norton, 275 F.3d 98 (D.C. Cir. 2001).

The MBTA was enacted by Congress in 1918 to implement a convention between the United States and Great Britain protecting migratory birds. See 16 U.S.C. §§ 703, 712; Convention for the Protection of Migratory Birds, August 16, 1916, United States-Great Britain (on behalf of Canada), 39 Stat. 1702, T.S. No. 628 (the "Canada Treaty"). By enacting the MBTA, Congress asserted regulatory authority over migratory birds, authority which had previously had been exercised by the individual states. After enactment of the MBTA, the USFWS became primarily responsible for the management of migratory bird populations within the United States.

The cornerstone protection for migratory birds afforded by the MBTA is the Act's prohibition against, inter alia, taking, hunting, killing, removing, possessing or selling any migratory bird or eggs unless so permitted by regulations promulgated under the MBTA by the U.S. Department of the Interior, under which the USFWS falls. See 16 U.S.C. §§ 703, 704; Hill, 275 F.3d at 106. Under the Department of Interior's implementing regulations, the USFWS is authorized to issue *107 "depredation permits" for the removal of a particular species of migratory birds from the wild where an applicant can demonstrate that the birds are causing damage to agriculture or native habitats. See 50 C.F.R. 21.41. Absent a "depredation permit" issued by the USFWS, any killing or removal by any person of an MBTA protected species constitutes a criminal offense punishable by a fine not to exceed $15,000 and imprisonment up six months. See 16 U.S.C. § 707(a).

At issue in the Hill case was whether mute swans, which rarely travel more than thirty miles from their places of birth during their lifetimes, is a "migratory bird" within the meaning of the MBTA and therefore protected as such. See Hill, 275 F.3d at 99. If so protected, state wildlife agencies would need depredation permits before they could remove any of the birds from the wild. Id. Over the objections of the Department of the Interior, the Court determined that the species must be included in the USFWS' List of Migratory Birds. The Court reasoned that mute swans, despite being non-migratory, must be included because they are "swans" and in the "family Anatidae," both specifically referenced as protected by the Canada Treaty. Id. at 106.

THE ISSUANCE OF MUTE SWAN DEPREDATION PERMITS BY THE USFWS IS A FEDERAL ACTION NECESSITATING REVIEW UNDER NEPA.

In the spring of 2003 a number of state wildlife agencies, including DNR's Wildlife and Heritage Service, submitted applications to the USFWS for depredation permits to remove mute swans by lethal means and to addle mute swan eggs. These applications came as both DNR's Statewide Management Plan and the Atlantic Flyway Councils' Atlantic Flyway Mute Swan Management Plan [FN1] recommended that the protection of aquatic grasses and species of native fish and waterfowl in the Chesapeake Bay and throughout the Atlantic Flyway depended upon a drastic reduction of mute swan populations. Indeed, the Atlantic Flyway Council recommended reducing the Flyway-wide mute swan population by 67 percent, from some 12,940 birds in 2003 to a target population of 4,675 birds - the approximate pre-1986 Flyway population. Since issuance of depredation permits by the USFWS to remove of mute swans from the wild constitutes a proposed "Federal action" under NEPA, the USFWS could not issue the permits until after it conducted a NEPA-mandated review of the proposed action. To these ends, during the summer of 2003 the USFWS conducted an Environmental Assessment (the "Mute Swan EA") regarding the issuance of mute swan depredation permits.

*108 NEPA was enacted to "encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation." See NEPA, § 2, 42 U.S.C. § 4321. In enacting NEPA, Congress was concerned with the potential impacts of major federal actions on the physical environment, see Metropolitan Edison v. People Against Nuclear Energy, 460 U.S. 766, 772-73 (1983), and thus required that Federal agencies prepare a detailed Environmental Impact Statement ("EIS") for those "major Federal actions significantly affecting the quality of the human environment . . . .," 42 U.S.C. § 4332(2)(C). NEPA's mandate to the Federal agencies is meant "to insure fully informed and well-considered decision[s] . . . ." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

Regulations promulgated by the Council on Environmental Quality ("CEQ"), 40 C.F.R. §§ 1500-1508, provide guidance in the application of NEPA. In order to determine whether an action is one requiring an EIS, the Federal agency may prepare an EA. See 40 C.F.R. § 1501.4(b). An EA is a concise public document that should briefly describe the proposal, examine alternatives, consider environmental impacts, and provide a listing of individuals and agencies consulted. See 40 C.F.R. § 1508.9. "If a finding of no significant impact [a 'FONSI'] is made after analyzing the EA, then preparation of an EIS is unnecessary" and the NEPA analysis ends. Sierra Club v. United States Dept. of Transp., 753 F.2d 120, 126 (D.C. Cir. 1985). Once a FONSI is issued, the Federal agency may then proceed with the proposed action.

The Mute Swan EA, which considered the wealth of environmental research on the habitats and impacts of mute swans in both the U.S. and in Europe and the "documented scientific evidence of the negative impacts that a growing population of mute swans is having on wetland habitats and native species of fish and wildlife, the threats that mute swans pose to human health and safety, and the damage that they can cause to commercial agricultural crops," resulted in a FONSI issued by USFWS on August 7, 2003. See Fund for Animals v. Norton, 281 F.Supp.2d 209, 216 (D.D.C. 2003). The FONSI specifically related to the proposed issuance of individual depredation permits by the USFWS to authorize the removal of not more than 3,100 mute swans annually, over the course of ten years, within the Atlantic Flyway.

The conclusions reached by the USFWS in issuing the FONSI are perfectly logical; to have concluded otherwise would have been counter-intuitive. Since mute swans are non-native to the Chesapeake Bay and the Atlantic Flyway and are indeed invasive, a "significant impact" to the human environment, as contemplated by Congress in enacting *109 NEPA, can only occur if the swans are permitted to remain and flourish within the affected native habitats. It is clear from all available empirical data that mute swans have adverse impacts upon ecosystems to which they are non-native. Thus, the adverse impacts caused by mute swans upon native habitats can only be eliminated or lessened, as concluded by the Mute Swan EA, by the removal of the mute swans from these habitats. There is no basis upon which to believe or even speculate that the removal of non-native and invasive mute swans from native habitats will adversely impact the native habitats, as would have been a required scientific finding for the USFWS to have not issued the FONSI.

THE FUND FOR ANIMALS, ET AL. V. NORTON, ET AL.: A FRUSTRATION OF PURPOSE.

On August 11, 2003 the USFWS, acting within the scope of the FONSI, issued a mute swan depredation permit to DNR for the removal from the Bay of up to 525 mute swans prior by year-end 2003. See Fund for Animals, 281 F.Supp.2d at 216. A few days later The Fund for Animals (the "Fund"), an animal rights organizations based in Silver Spring, Maryland, together with several of its members, brought suit against the USFWS in United States District Court for the District of Columbia challenging the FONSI and DNR's permit. Id. The Fund immediately sought the issuance of the preliminary injunction restraining DNR from acting upon its permit pending resolution by the Court of its claim that the USFWS was in error when it issued the FONSI, and that the environmental issues involved necessitated that the USFWS conduct an EIS under NEPA before it issued any further mute swan depredation permits. Id. at 213. [FN2]

Under the Federal Rules of Civil Procedure, Rule 65, a court may issue a preliminary injunction if the movant demonstrates: (i) a substantial likelihood of success on the merits of his claim; and (ii) that he will suffer irreparable injury if the injunction is not issued. See Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998). When reviewing motions for preliminary injunctions, courts must consider whether issuance of an injunction will cause harm to a non-moving party or the public interest, and then weigh the severity of that harm against the harm that may befall the movant if the injunction is not issued. Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 544-45 (1987). This harms analysis is often referred to as "balancing the harms."

After receiving briefs from the parties, and hearing argument in open court, the Court, by Memorandum Opinion, granted the Funds' motion for a preliminary injunction finding that the Fund had "made *110 a compelling showing of irreparable harm, as well as a substantial case on the merits" of their claims under NEPA. Id. at 237. Thus, the Court, acting within its discretion, made the necessary findings under Rule 65 for issuance of a preliminary injunction. The USFWS, upon reviewing the Court's opinion and determining that it was unlikely to prevail on the merits with respect to the NEPA issues as they were framed by the Court in its Memorandum Opinion, opted to withdraw the Mute Swan EA, the FONSI, and all outstanding mute swan depredation permits, including DNR's. The Fund subsequently dismissed the case. The FONSI having been withdrawn, the USFWS presently lacks the authority under NEPA to issue mute swan depredation permits anywhere within the Atlantic Flyway.

As the basis for its allegations of error under NEPA, the Fund noted in its Complaint and its Motion for a Preliminary Injunction a number of alleged procedural errors that had occurred during the completion of the Mute Swan EA. Fund for Animals, 281 F.Supp.2d at 224-237. The Fund's allegations included, inter alia, that: (i) the USFWS did not present the Mute Swan EA for a sufficient duration of public comment before issuing the FONSI, despite there having been a 15-day comment period consistent with applicable regulations; (ii) an EIS was required because the proposed action to lethally remove mute swans was "highly controversial" and "precedent setting"; (iii) the USFWS failed to consider all available alternatives to lethal removals; and (iv) the Mute Swan EA simply justified a decision to permit the lethal removals that had been made by the USFWS prior to the commencement of the Mute Swan EA. Id. The Court saw merit in a number of these allegations, and thus found that the first prerequisite for issuance of an injunction - a meritorious case - was satisfied. Id.

The Fund then argued, as a basis for immediate and irreparable harm, that a number of the plaintiffs would experience decreased opportunities to view swans in the wild if DNR were permit to remove the 525 birds before the end of the year. Fund for Animals, 281 F.Supp.2d at 219-20. The Court found precedent for this argument and concluded that the Fund had alleged harm sufficient to warrant the imposition of the injunction. Id. at 222.

Thus, at first glance, given the Court broad discretionary authority to fashion equitable relief, the Court's decision to issue the preliminary injunctions seems to have been reasonable: the Court found a meritorious case and a pending harm to the plaintiffs. The problem with the case, however, lies with the contradictions between the Funds' arguments both on the merits and on the balancing of harms, on the one hand, and the policy objectives of NEPA, on the other. The shallowness of the Fund's arguments under NEPA were evident by the fact that it did not assert, either as a basis for its underlying NEPA allegations or as a basis of irreparable harm, that any environmental harm would result from DNR's removal of 525 mute swans *111 from the Chesapeake Bay. Indeed, with the exception of some baseless rhetoric, the scientific community's core concern - that invasive mute swans reek havoc upon native habitats - remained unchallenged by the Fund. Indeed, neither the Fund, nor the Court, looked beyond the narrow framework of the Fund's allegations to insure that, as mandated by NEPA, the Federal action proposed was sensitive to the relevant environmental concerns.

To be sure, the Fund's allegations supporting the merits of its NEPA claims were each thinly-veiled procedural claims, not asserting any error in the scientific record, but rather premised upon precedents that have run far-afield from the original purposes and objectives of NEPA. For instance, despite there being no statutory requirements under NEPA for an agency to engage in public notice and comment prior to the issuance of either an EA or a FONSI, see Fund for Animals, Inc. v. Rice, 85 F.3d 535, 549 (11th Cir. 1996), the Fund leveraged CEQ regulations encouraging public involvement with varying precedent from other courts to convince the Court that the public involvement in the development of the Mute Swan EA was deficient. Fund for Animals, 281 F.Supp.2d at 228-29. This, despite the fact that no evidence or information was offered, either during the public comment period or during the preliminary injunction proceedings, upon which to reasonably conclude that any additional public comment would have changed the nature of the EA's substantiated conclusion: that lethal removal of invasive mute swans will stave off future sensitive native habitat disturbances.

As the basis for irreparable harm to support the issuance of the preliminary injunction, Fund alleged only that a few scattered Maryland residents would experience decreased opportunities to view and enjoy mute swans at or near their residences if DNR were permitted to remove the 525 birds from the Bay population of over 3,600 birds. Fund for Animals, 281 F.Supp.2d at 219-20. However, no evidence was presented that the areas in which DNR proposed to remove these birds - mostly from remote locations in the lower Bay - would have even affected the plaintiffs' viewing habits. The Fund alleged no environmental harm that would result from the proposed action. [FN3]

While aesthetic injuries associated with decreased opportunities to view wildlife in the face of proposed actions to cull wildlife populations may constitute sufficient harm to give a party standing to seek a preliminary injunction, the mere existence of such harm is not necessarily*112 sufficient, on its own, to warrant the issuance of a preliminary injunction; the harm must be considered among any number of factors under the balancing of harms analysis. See Fund for Animals v. Lujan, 962 F.2d 1391 (9th Cir. 1992) (plaintiff's reduced opportunities to view bison if population plan were carried out was a potential harm that gave them standing to challenge the action; however denial of a preliminary injunction to stop the plan was proper where the balance of the harms did not tip in the plaintiff's favor); Sierra Club v. Block, 614 F.Supp. 134, 137-39 (E.D. Tex. 1985) (the court found upon balancing the harms that more harm would be caused to a pine forest from the spread of a beetle infestation if a Forest Service's plan was halted then would be caused by implementation of the plan to remove the then-infested trees); Southern Utah Wilderness Alliance, 987 F.Supp. at 1398 (balance of harms weighed in favor of Forest Service's decision to cut old-growth spruce infested by beetle; less harm would be caused by removing infested trees than by permitting spread of the infestation to other trees). Indeed, the Supreme Court has noted that, in cases involving environmental factors, the balancing of harms will usually favor the alternative that protects the environment. See Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 544- 45 (1987).

Juxtaposed with the minimal and speculative harm that these Fund members may have suffered if the 525 mute swans were removed, was the very real and severe harm that the swans have caused, and would continue to cause, the Bay. The history of the mute swan population in the Bay and elsewhere leads to two inescapable conclusions: (a) implementation by wildlife managers of population control efforts that include swan removals and egg addling can effectively reduce the swan populations over time, and (b) without population controls the number of swans increase immediately and rapidly. The Court was faced with the scenario that were it to restrain the removal of the 525 mute swans from the Bay, the 2004 breeding population of mute swans would include as many as 250 additional breeding pairs resulting is upwards of 1,000 or more cygnets, or offspring. The harm is clear, immediate and irreparable:

The additional 525 mute swans would consume as much as of 2 million pounds of SAV over the following year alone, placing even further stress upon this vital resource.

The negative impact on SAV would most notably occur in those localized areas in the lower Bay where the swans are most populace and from where the greatest numbers would have been removed.

There would be greater opportunities for displacement of native wildlife during the 2003-2004 winter waterfowl migratory season as the result of both increased SAV foraging by mute swans and increased interactions.

*113 Survival of upwards of 1,000 offspring in 2004 year alone would irretrievably expand the breeding population three and four years hence.

In response, the Fund argued that mute swans do not negatively impact SAV, or, at worst, the impacts are only negligible. This argument, however, was completely belied by the facts and wholly unsubstantiated by any empirical data. As stated, the incontrovertible research on mute swan consumption concludes that the invasive swans have a very real and quantifiable impact on SAV. Mute swans consume upwards of 10 pounds per day each, dislodge as much as an additional 20 pounds per day each, and, because of their foraging habits during the spring and summer when SAV is growing, prevent the establishment and maturation of SAV beds. Indeed, in Maryland, the most significant impacts are not from a Bay-wide perspective, but rather localized in areas where swans are abundant. The Fund never offered any data to the contrary.

The Fund also argued that the Bay's primary SAV culprit is pollution and other factors, and thus the swans should be left alone. This argument, however, defied logic. The fact that suspended sediment and nutrient levels in Bay waters are the primary cause of the reduction in SAV abundance does not make mute swan impacts on SAV any less real or significant. Indeed, given the current low levels of Bay SAV from an historic perspective, mute swan impacts on SAV are proportionately much greater now than they would have been decades ago.

Thus, when viewed specifically within the context of a NEPA suit, the severity of the competing harms involved in this case tipped decidedly towards the environmental harms demonstrated by the USFWS and DNR. Though the Court certainly acted within its equitable discretion in finding sufficient aesthetic harm to warrant the issuance of an injunction, the Fund's exploitation through the vehicle of NEPA of the alleged human inconveniences associated with marginally decreased opportunities to view swans to obstruct the implementation of sound environmental policy certainly frustrated one of the principal tenets of NEPA: balancing the interests of environmental preservation with the unfettered and unrestrained proclivities of human activities.

[FNd1]. Paul Cucuzzella is an assistant attorney general in the Office of the Attorney General in the Department of Natural Resources. He received his J.D. from the University of Baltimore School of Law in 1996.

[FN1]. The Atlantic Flyway Council is an administrative body comprised of 23 State and Canadian Provincial wildlife agencies that was organized in 1952 for the purpose of managing migratory bird populations.

[FN2]. DNR was permitted, upon its own motion, to intervene in the suit. Fund for Animals, 281 F.Supp.2d at 214.

[FN3]. The fact that mute swans would have been killed if the preliminary injunction were not issued did not amount to legal irreparable harm. The killing of wildlife only constitutes an irreparable injury if a species is going to be harvested in such excessive numbers as would "irretrievably damage the species." Fund for Animals v. Frizzell, 530 F.2d 982, 986 (D.C. Cir. 1975) (harvesting that will simply decrease the population is insufficient to establish irreparable harm to the species).