“And after many a summer dies the swan.” – Alfred, Lord Tennyson
By Michael Markarian
On May 5 in the waters off Edgewater Park in the Bronx, a dozen or so friends laughed and cheered while one of their group punched and kicked a 17-pound female mute swan, picked her up by the neck, and slashed her throat. Her mate, a 25-pound male mute swan, was killed moments earlier in much the same way, suffering a fatal stab wound to the chest. The pair of swans did not even flee from their attackers, most likely because they wanted to protect their nearby nest of six eggs.
In a bittersweet epilogue to this dark tale, six cygnets have hatched from the orphaned eggs and are recovering at the nearby Green Chimneys farm and rehabilitation center. The gruesome slaying of their parents has sickened and outraged Bronx residents, many of whom had befriended the pair of swans. No arrests have been made, but humane law enforcement officers are investigating, and there is a standing reward of $4,000 for information leading to the arrest and conviction of the criminals.
Six months ago, federal agents from the U.S. Fish and Wildlife Service would have joined the investigation, as killing mute swans would have been a federal violation of the 86-year-old Migratory Bird Treaty Act. But thanks to a Congressional rider secretly attached to a 3,600-page budget bill in December—pushed by environmental and trophy hunting organizations—mute swans and more than 100 other species of birds lost their federal protections. Slaughters like the one in the Bronx could become more frequent, and with the birds’ federal protections gutted, state laws are their only remaining hope.
From Beauty to Beast
The mute swan is a large, all-white bird, recognized by its orange bill with black at its base, common in Europe and Asia. The birds grace many lakes and bays in the United States, primarily on the east coast. Nobody knows exactly when or how the swans first came to America from Europe. Colonial settlers may have brought the birds as pets to decorate private ponds, and the animals eventually established their own wild populations.
The beautiful birds stand squarely in the center of controversy, as state and federal wildlife officials and some environmental organizations have been eager to blame mute swans for being aggressive, pushing out other waterfowl, and even destroying submerged aquatic vegetation (SAV) in sensitive areas such as the Chesapeake Bay. The evidence against the swans is anecdotal at best, and wildlife agencies’ own studies indicate that the small population of mute swans—only 3,600 in Maryland and 14,000 in the entire Atlantic Flyway of the United States and Canada—is not causing any real damage.
According to the Chesapeake Bay Foundation, for example, the two leading threats to the bay’s crucial underwater grasses are agricultural waste run-off and sewage treatment plants. Mute swans probably wouldn’t make a list of the top fifty. But the big industrial chicken producers pull out all the lobbying stops to defeat any meaningful attempts to control agricultural waste. And no one wants to appropriate the money to upgrade sewage treatment capacity. It’s much easier for public officials to scapegoat the swans than to grapple with complex environmental problems.
Even in Maryland, where the controversy has been most heated, the state’s Department of Natural Resources has repeatedly explained that mute swans have only a “negligible” impact on the Chesapeake Bay, that “there is no evidence to suggest that mute swans are causing any impact to agriculture in Maryland,” that the birds “are not the primary cause of the decline of SAV in the Chesapeake Bay,” and that, in fact, the “decline of SAV has been attributed primarily to elevated levels of nutrients and suspended sediments.”
In 2003, despite the lack of evidence against the swans, the U.S. Fish and Wildlife Service granted dozens of permits allowing state wildlife agencies to kill thousands of the birds indiscriminately. The Fund for Animals and several citizens challenged the permits in federal court, and after carefully reviewing the question of whether mute swans were harming the environment, the court found no threats and no justification for killing the birds. The U.S. government voluntarily withdrew every permit, and the mute swans were given a reprieve.
“Reforming” the Law
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©2005 John Roche/Bronx Times |
The pardon didn’t last long. Determined to exterminate mute swans regardless of their impacts, or lack thereof, certain organizations and legislators sought to circumvent the federal court’s decision. U.S. Representative Wayne Gilchrest (R-MD) and U.S. Senator George Voinovich (R-OH) introduced the Migratory Bird Treaty Reform Act, in the hopes of removing federal protections for mute swans and dozens of other bird species. The criteria for removing protections would be based on a bird’s ancestry, and any species declared to be “non-native” to the United States would no longer be safe.
The act’s vague and arbitrary “non-native” standard, however, mocks decades of international and domestic law. Since 1916, the U.S. has signed four international treaties—with Canada, Mexico, Russia, and Japan—to protect migratory birds who move between countries. Congress enacted the Migratory Bird Treaty Act in 1918, a bulwark of our conservation law, to implement and enforce the provisions of these international treaties.
The MBTA, which has worked well for nine decades, already includes provisions for dealing with birds who harm agriculture or the environment. Depredation orders are already available for bird species, “native” or otherwise, that cause specific damage in specific locations. To be sure, agencies regularly hand out permits like candy to kill thousands of native migratory birds such as Canada geese, double-crested cormorants, and laughing gulls.
Nowhere in the four migratory bird treaties has there been any distinction between “native” and “non-native” species. To the contrary, these treaties are specifically intended to protect birds who move between countries. The “reform” legislation undermines the very purpose of the migratory bird treaties—to protect birds not just in “native” countries, but across the full range of their ancient migratory routes.
But because federal and state wildlife officials couldn’t prove mute swans were causing any damage, friendly politicians found a clever way around the MBTA: They rewrote the law. Late last year, the Migratory Bird Treaty Reform Act was quietly slipped into a 2005 omnibus spending package, buried in 3,600 pages of language. No one saw it. It received no public hearing, no public discussion, and no public debate. It was backroom political dealing at its worst, and Congress passed it. The president signed it into law in December 2004.
The new law relieves wildlife agencies of the obligation to base their depredation decisions on hard science—and instead gives them a blank check to exterminate mute swans indiscriminately.
Origin of the Species?
The “Reform Act” targets not only mute swans, but more than 100 bird species—including certain species of storks, pelicans, cardinals, cranes, and orioles—which, according to the new law are not “entirely the result of natural biological or ecological conditions.” But who decides which species meet that arbitrary definition? That responsibility rests solely with the U.S. Fish and Wildlife Service. And how do those USFWS decision-makers deal with murky circumstances such as, say, a species that migrates from its native habitat because of environmental changes? Are those birds now considered non-native in their new habitat?
Suffice to say, the law eliminated a clear, closed list of species that has worked for decades, and replaced it with a vague, ill-defined standard of “native” that will only increase litigation over bird protection as courts will be forced to sort out complicated historical arguments about which bird species were here first, which species deserve to live, and which species should be systematically exterminated.
Some of the species targeted to lose their protection are even considered imperiled under other international agreements such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Species such as the Nicobar pigeon and the Luzon bleeding-heart need global cooperation to survive. Bird species protected in other range states under their domestic laws could be killed when traveling through the United States, undermining diligent efforts abroad to protect these same species at other times of the year.
By unilaterally rewriting the terms of these treaties—terms negotiated with other countries and accepted in U.S. law for decades—Congress has invited retaliation. The new law also poses a threat to international cooperation on a wide range of conservation and environmental issues. It’s like Congress trying to redefine the terms of NAFTA without consulting Mexico or Canada.
With Friends Like These&
Perhaps the most surprising aspect of this anti-science and anti-conservation legislation are those behind it. Environmental groups such as the American Bird Conservancy, National Audubon Society, Sierra Club, The Nature Conservancy, and World Wildlife Fund should have rallied to the birds’ defense, but instead they joined the NRA, Safari Club International, U.S. Sportsmen’s Alliance, and Archery Trade Association in the effort to allow the wholesale slaughter of mute swans.
In the campaign to vilify mute swans, Gerald Winegrad, vice president for policy of the American Bird Conservancy, repeatedly described the birds as vicious marauders with “destructive habits,” and proposed that mute swans must lose their federal protection before “such protection might be extended to other exotic, destructive non-native avian species.”
And when the “Reform Act” actually became law, John Ficker, president of the Audubon Society, applauded its passage in a stunning example of Orwellian doublespeak. “This is a real bright spot in the murk of the controversial omnibus bill,” he said. “A court ruling earlier this year put America’s migratory birds at risk from the very law designed to protect them. We owe all lawmakers from both parties who championed this much needed bird conservation provision a big ‘thank you’.”
More than a hundred bird species certainly aren’t saying “thank you” to groups like Audubon and the American Bird Conservancy. It raises the question of why organizations that supposedly work to protect birds—and raise millions of dollars from their members for just that purpose—led the charge to reverse a bird protection policy that had been in place for decades.
“Nativism” Out of Control
Species, without a doubt, sometimes have conflicts with each other, and most everyone agrees that we should strive for biodiversity and balanced ecosystems. It’s only sensible that we should learn from past mistakes and prohibit the import or release of any new exotic species, as they may disrupt that balance. Stocking exotic animals for sport hunting opportunities, trading in exotic pets, and other such activities are not only inhumane but also biologically reckless.
But some environmental groups and wildlife managers have taken this principle to an illogical extreme. They want to exterminate any animal they consider “non-native,” even if that species has been in its current habitat for decades or centuries, has adapted to our ecosystem, and hasn’t caused any problems. These extremists believe it’s not a question of impacts, but one of heritage. If the animal wasn’t here at a given point in time, they think, then the animal doesn’t fit within our view of what nature should look like, and is no longer welcome.
Proponents of “nativism” often point to examples of “non-native” species that have caused environmental problems—such as the zebra mussel—to assert that “non-native” species are dangerous. But examples are not arguments. There are bad apples in every bunch. Some of our most dangerous pests—say, mosquitoes and locusts—are native species, and many of the newcomers to this country are perfectly harmless.
Most important, whether animals are “native” or not, they must be treated fairly and humanely. They shouldn’t be held accountable for our own mistakes of importing or releasing them into new areas. When conflicts do occur, we must strive to address them using humane measures such as birth control and relocation. In their zeal to exterminate “non-natives,” many agencies and organizations adopt the cruelest methods available—poisoning, shooting, neck breaking, bludgeoning—and fail to make animal welfare part of their calculus.
After all, if our government officials and environmental advocates say that mute swans don’t deserve protection and it’s acceptable to kill them in the most gruesome and horrific of ways, what’s to stop a group of teenagers in the Bronx from following their example?
Try and Try Again
In the wake of the Congressional rider of 2004, the U.S. Fish and Wildlife Service lifted federal protections for mute swans, and Maryland officials quickly announced their decision to kill up to 2,000 swans around the Chesapeake Bay—more than half of the state’s swans—this spring. The Fund for Animals and the Maryland citizens who stopped the mute swan killings in 2003 have gone back to federal court, arguing that because the species is still protected by several international treaties for migratory birds, and because Congress made it clear that the rider was meant to be “consistent with the&treaties,” mute swans remain protected.
What’s more, we’re also trying to work proactively with the state to deal with what it clearly perceives to be a problem. Despite the lack of any scientific evidence showing that the mute swan population needs to be controlled or reduced, The Humane Society of the United States has offered to help Maryland officials humanely reduce the population through an egg-addling program, in lieu of the proposed wholesale slaughter.
For more than a decade The HSUS has been involved in egg-addling efforts which have successfully and humanely resolved conflicts with waterfowl populations in problem areas in several states. Although state officials have previously acknowledged that addling the eggs of mute swans may slow or reduce Maryland’s population, they now refuse to rely on this humane approach, and are intent on killing swans.
“Our offers to assist the state of Maryland have consistently fallen on the deaf ears of agency officials, who are committed to killing animals even when a viable and humane alternative is available,” said Dr. John W. Grandy, a waterfowl biologist and the senior vice president of Wildlife and Habitat Protection for The HSUS. “In many states, including Michigan, Washington, and Maryland, The HSUS has successfully helped reduce waterfowl populations by egg-addling. The programs work, and they can bring all sides together in solving real problems humanely rather than having us meet in the courtroom.”
The Fund and other plaintiffs asked for a preliminary injunction to stop the killing of mute swans in Maryland, which was scheduled to begin on May 15. Judge Emmett G. Sullivan of the Washington D.C. federal district court ordered a postponement of the swan killing program, but unfortunately on June 15, he decided against extending the injunction. Sullivan acknowledged, once again, that mute swans are posing no immediate threat to the Chesapeake Bay, but in light of the change in federal law, the court was unable to stop the state of Maryland from killing these birds, which it plans to start on June 20. Despite the setback on the injunction, however, the lawsuit filed by the Fund and Maryland citizens is still in play, and will be heard on the merits later this year.
In an ironic footnote to the mute swan saga, the federal and state partnership Chesapeake Bay Program recently released a report revealing the startling news that the upper bay’s underwater grasses—which groups like American Bird Conservancy and Audubon claim are being eaten to extinction by mute swans—have more than doubled from 2003 to 2004. In other words, the year-long hiatus on mute swan killing inaugurated by Judge Sullivan’s order in 2003, and terminated by Congress’ ill-conceived rider last-fall, was not only a very good year for the mute swans, but was a banner year for bay grasses as well. It’s good news for the recovery of the Chesapeake Bay, and a good indicator that mute swans are just as benign as they are beautiful.
Michael Markarian is executive vice president for external affairs of The HSUS and president of The Fund for Animals.
