A federal appeals court has ruled that mute swans in Maryland and 12 other states must be protected under federal law, even though state biologists say the visitors from Asia have become a beautiful nuisance. The ruling has halted, at least temporarily, a long-planned state effort to control the swans' exploding population in Chesapeake Bay waters.
The orange-beaked birds, natives of Asia by way of Europe, were imported for their beauty in the 1800s. But unlike the black-beaked tundra swans which visit the Chesapeake region for the winter, mute swans live here year-round, gobbling up the underwater grasses that sustain a variety of bay creatures and attacking the nests of rare native birds. Wildlife managers say there are now about 4,000 of them, and they estimate the population will double by 2003.
Hunters are forbidden to shoot mute swans under current state rules, though state biologists and some community groups track down their nests and coat the eggs with vegetable oil to prevent them from hatching.
John Surrick, a spokesman for the Department of Natural Resources, said that after two years of planning, the agency was on the verge of outlining an official mute swan control policy. Early versions included creating "swan-free zones" and, as a last resort, shooting the most troublesome birds.
But Friday, the U.S. Court of Appeals for the District of Columbia ruled in favor of two bird-lovers who sued the federal government over its refusal to protect mute swans under the federal Migratory Bird Treaty Act.
Joyce Hill, a Dorchester County resident, and Kathryn Burton, the Connecticut-based founder and president of Save Our Swans USA, argued that when Congress ordered the federal government to protect "wild ducks, geese and swans," that included mute swans.
Hill and Burton lost in federal trial court a year ago. But the three-judge appeals panel said it was "plain" that mute swans are swans, and therefore must be protected under the federal act.
The panel said the federal government can, within the limits of the migratory bird law, take steps to control the damage done by mute swans, including possibly hunting, capturing or killing them.
"The appeals court said a swan is a swan is a swan, and I really think this is a momentous decision," said Hill, who for 34 years has lived part time on Hooper Island, in an area where the mute swan population is dense.
Surrick said the ruling "seems to leave us in a position where we need to wait and see what the federal government is going to do."
It's now unlikely there will be any checks on Maryland's mute swan population this year, Surrick said. The state could still impose some controls on mute swan populations once the federal government lays out the guidelines.
Interior Department spokesmen refused to comment on the ruling yesterday, saying they have not seen the court's opinion.
Burton said the ruling will force the 13 states that have mute swan populations to change policies that encourage public hostility toward the birds.
"The government puts out this negative imagery - `it's a mute swan, not native, kill it' - and the public picks up on that," said Burton, who said she formed the mute swan protection group after she watched teen boaters deliberately run over hatchlings on the lake near her Old Lyme, Conn. home.
Burton said she and Hill - who got involved in 1997, after DNR biologists killed six tundra swans that invaded a nesting colony of skimmers and least terns - spent $30,000 of their own money on the suit. "We're only a small group with very limited funds, but this was the right thing to do," Burton said.
But Bill Street, restoration director for the Chesapeake Bay Foundation, said anything that prevents or delays the control of mute swans will end up harming other wildlife. "If the Chesapeake Bay was in a very healthy state it might not be as much of an issue," Street said. "But since we're struggling to get back every acre of underwater grasses that we can, it's a real concern."