Fund for Animals v. Kempthorne, Dirk
374 U.S. App. D.C. 111, 36 Envtl. L. Rep. (Envtl. Law Inst.) 20248, 472 F.3d 872 (2006)
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Rule of Law:
An unambiguous, later-enacted statute controls over a conflicting prior treaty under the last-in-time rule. A 'sense of Congress' provision expressing that the statute is consistent with the treaty does not create ambiguity in otherwise plain statutory language.
Facts:
- In 1916 and 1936, the United States entered into conventions with Canada and Mexico to protect migratory birds, including the family Anatidae, which contains swans.
- The mute swan, a species not native to North America, was originally brought to the United States for ornamental purposes and established feral populations.
- In a 2001 case, Hill v. Norton, this court held that the original Migratory Bird Treaty Act (MBTA) did protect mute swans because they fall within a bird family listed in the conventions.
- In 2004, Congress passed the Migratory Bird Treaty Reform Act, which amended the MBTA to state that it 'applies only to migratory bird species that are native to the United States or its territories.'
- Following the Reform Act's passage, the U.S. Fish and Wildlife Service published a final list of non-native, human-introduced species to which the MBTA does not apply, including the mute swan.
- Citing ecological damage from a surging mute swan population, the Maryland Department of Natural Resources announced its intention to begin killing adult mute swans in the Chesapeake Bay.
- The Fund for Animals and several individuals who enjoyed the presence of mute swans on their property opposed Maryland's plan.
- Plaintiffs conceded that the mute swan is not native to the United States.
Procedural Posture:
- The Fund for Animals and three individuals sued the Secretary of the Interior in the U.S. District Court for the District of Columbia under the Administrative Procedure Act.
- The plaintiffs challenged the U.S. Fish and Wildlife Service's decision to exclude the mute swan from the list of species protected by the Migratory Bird Treaty Act.
- Plaintiffs moved for a preliminary injunction to prevent the state of Maryland from killing mute swans.
- The District Court (court of first instance) denied the preliminary injunction, finding that the government had an overwhelming likelihood of success on the merits.
- At the parties' request, the District Court converted its ruling into a final judgment on the merits in favor of the defendants.
- The Fund for Animals (appellant) appealed the final judgment to the U.S. Court of Appeals for the D.C. Circuit.
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Issue:
Does the Migratory Bird Treaty Reform Act of 2004, which explicitly limits the Migratory Bird Treaty Act's protections to native species, remove federal protection for the non-native mute swan, despite a 'sense of Congress' provision stating the amendment is consistent with the original treaties?
Opinions:
Majority - Kavanaugh
Yes. The Migratory Bird Treaty Reform Act of 2004 removes federal protection for the non-native mute swan. The text of the Reform Act is unambiguous in stating the MBTA 'applies only to migratory bird species that are native to the United States.' Because the mute swan is not native, the statute no longer protects it. The plaintiffs' argument that the 'sense of Congress' provision creates ambiguity is unpersuasive. That provision merely indicates Congress's disagreement with the court's prior interpretation in Hill and its belief that the treaties were never intended to cover non-native species; it does not alter the clear, operative text of the statute. The canon of construction against abrogating treaties applies only to ambiguous statutes. Since this statute is unambiguous, the last-in-time rule dictates that the later-enacted statute trumps any conflicting provision of a prior treaty.
Concurring - Kavanaugh
Yes. The statute removes protection for the mute swan. Even if the statute were ambiguous, the canon against abrogating treaties should not apply because the migratory bird conventions are non-self-executing. Non-self-executing treaties require implementing legislation to have domestic legal force and do not automatically become part of domestic law. Using a non-self-executing treaty to interpret an ambiguous domestic statute would improperly give domestic legal effect to treaty provisions that the political branches never enacted into law. The conventions here are non-self-executing because their text contemplates implementing legislation and they do not create a private right of action.
Analysis:
This decision reinforces the principle of Congressional supremacy in domestic law and the 'last-in-time' rule, clarifying that a clear statute overrides a prior treaty. It significantly limits the power of 'sense of Congress' provisions, establishing that they are non-binding expressions of opinion that cannot create ambiguity in otherwise plain statutory text. The concurrence further develops the distinction between self-executing and non-self-executing treaties, arguing that canons of construction related to treaty abrogation should not apply to the latter, thereby restricting judicial power to incorporate international obligations into domestic law without explicit legislative action.
