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Mute-Swan Activist Loses Bid for Attorney Fees

(CN) - A bird activist lost her bid for attorney fees after successfully claiming that the government failed to protect the mute swan under the Migratory Bird Treaty Act.

Joyce M. Hill, a champion for the mute swan, sued various federal, state and private entities for allegedly failing to protect the Eurasian bird species. Mute swans were introduced to the United States in the 19th and 20th centuries for "ornamental purposes," according to the ruling.

Hill accused the Secretary of the Interior of failing to list the species under the Migratory Bird Treaty Act, which limits the hunting and killing of migratory birds.

The Secretary of the Interior offered three reasons for the species' exclusion: mute swans aren't native to the United States; they're harmful to other protected bird species; and extending protection to the mute swam might conflict with other statutory obligations.

Although the district court eventually sided with Hill, it said it had "no idea" whether the Secretary's first two arguments were pertinent or compelling, because the agency record was "barren" on those issues.

As a result, the lower court denied Hill attorney fees. The federal appeals court in Washington, D.C., affirmed.

"In sum, the thinness of the agency record at the merits stage does not alter our conclusion that the Secretary's interpretation and arguments had a reasonable basis in fact and law," Judge Randolph wrote.

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