District of Columbia Circuit holds that the Migratory Bird Treaty Act does not prohibit the hunting of non-native bird species; Court considers canon that ambiguous statute should not be construed in a way to abrogate a treaty; concurrence distinguishes non-self-executing treaties
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. Sections 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.
Here, the parties agree that the mute swan is not a native migratory bird species. The Plaintiff claim that the amended statute conflicts 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, Section 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 conflict. 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 same time, the Supreme Court also has stated that an ambiguous statute should be construed where fairly possible not to abrogate a treaty. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984) ... The combination of the last-in-time rule and the canon against abrogation has produced a straightforward practice: Courts apply a statute according to its terms even if the statute conflicts with a prior treaty (the last-in-time rule), but where fairly possible, courts tend to construe an ambiguous statute not to conflict with a prior treaty (the canon against abrogation)."
"The canon against construing ambiguous statutes to abrogate prior treaties does not help plaintiffs here, however, because the amended Migratory Bird Treaty Act is unambiguous, as we concluded above. To accept plaintiffs' argument with respect to the canon, we would have to distort the plain meaning of a statute in an attempt to make it consistent with a prior treaty. The Supreme Court has not extended the canon that far, and for good reason: Distorting statutory language simply to avoid conflicts with treaties would elevate treaties above statutes in contravention of the Constitution."
"The Migratory Bird Treaty Act implements the migratory bird conventions. The Migratory Bird Treaty Reform Act amends that earlier statute and makes clear that mute swans are not protected by the Act. The canon against interpreting a statute to abrogate a treaty does not apply because the amended statute is plain. ..." [Slip op. 9]
Thus, the amended MBTA permits the hunting or killing of non-native migratory birds such as the mute swan.
The concurring Judge opines that the canon of construction should not apply in cases that involve non-self-executing treaties such as the migratory bird conventions. The migratory bird conventions are plainly non-self-executing (meaning that they must still be implemented into national law). The canon against interpreting ambiguous statutes to abrogate treaties applies to self-executing treaties (those that operate without the aid of any legislative provision). Therefore, the canon does not apply to the MBTA.
Citation: Fund for Animals, Inc. v. Kempthorne, No. 05-5352 (D.C. Cir. December 15, 2006).
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