275 F.3d 98 (D.C. Cir. 2001)
Joyce M. Hill, Appellantv.Gale A. Norton, Secretary, United States Department of the Interior, et al., Appellees
No. 00-5432
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2001Decided December 28, 2001

Appeal from the United States District Court for the Districtof Columbia (No. 99cv01926)
Erik S. Jaffe argued the cause and filed the briefs for  appellant.
Kathryn E. Kovacs, Attorney, United States Department of  Justice, argued the cause for appellees.  With her on the  brief were John C. Cruden, Acting Assistant Attorney General, Jeffrey Dobbins and Larry M. Corcoran, Attorneys.
Before:  Edwards and Rogers, Circuit Judges, and  Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Edwards.
Harry T. Edwards, Circuit Judge:


1
The Migratory Bird Treaty Act  ("MBTA"), 16 U.S.C.  703-712 (2000), extends protection to  all birds covered by four migratory bird treaties, which, in  relevant part, define migratory birds to include the family  Anatidae.  Congress has delegated authority to the Secretary  of Interior ("Secretary") to implement the treaties covered by  the MBTA.  See 16 U.S.C.  712(2).  Under this authority,  the Secretary has published lists of protected migratory  birds.


2
The instant case arose when appellant Joyce Hill filed a law  suit pro se in District Court claiming that the Secretary's  regulation violated the MBTA in excluding mute swans from  the List of Migratory Birds promulgated at 50 C.F.R.  10.13  (2000).  The District Court rejected Hill's claim and granted  summary judgment in favor of the Secretary.  Hill now  appeals from that adverse judgment.


3
The disposition of this case is very nearly governed by  Chevron step one.  See Chevron U.S.A., Inc. v. Natural Res.  Def. Council, Inc., 467 U.S. 837, 842-43 (1984).  This is so  because the plain meaning of the statute and the applicable  treaties strongly indicates that mute swans are qualifying  migratory birds under the MBTA.  We hesitate, however, to  decide this case on Chevron step one grounds, because of the  odd regulatory scheme created by the MBTA which refers to  four different treaties to glean a single substantive definition  of migratory birds and the absence of any agency pronouncement on the specific issue before the court.  We therefore  assume, arguendo, that the disputed agency action is not  positively foreclosed by the plain meaning of the statute.


4
Even indulging in such an assumption, however, the Secretary's position fails under Chevron step two.  The Secretary  points to nothing in the MBTA, treaties, or administrative  record to support the exclusion of mute swans from the List  of Migratory Birds.  And the statute and relevant treaty


5
support Hill's claim that mute swans should be included on  the list.  Accordingly, we reverse the judgment of the District  Court on Hill's MBTA claim, grant judgment for appellant,  and vacate the Secretary's List of Migratory Birds, codified  at 50 C.F.R.  10.13, insofar as the list excludes mute swans. We affirm the judgment of the District Court rejecting Hill's  complaint resting on the National Environmental Policy Act  ("NEPA").  We agree with the trial court that the NEPA  claim is meritless.

I. Background
A. Mute Swans

6
Mute swans scientifically titled cygnus olor are undisputed members of the family Anatidae.  Mute swans in the  United States probably descend from European birds introduced for ornamental purposes beginning in the mid-19th  century.  Michael A. Ciaranca, et al., Mute Swan, The Birds  of North America No. 273, 1 (1997).  Mute swans generally do  not migrate long distances, making only "short-distance seasonal movements" to find ice-free water.  Id. at 3.  They are  "highly territorial" and can treat other species with "direct  antagonism."  Id. at 10.  Indeed, the Government claims that  mute swans "occupy habitat and consume food used by migratory, endangered, and threatened species."  Keith M. Weaver  Decl. p 16, reprinted in Joint Appendix ("J.A.") 24.  There is  also information to suggest that mute swans cause ecological  damage:  "As an exotic, feral species, the Mute Swan's effects  on native ecosystems are a concern.  Potential effects range  from overgrazing aquatic vegetation to displacing native waterfowl." Ciaranca, supra, at 2.  See also Mem. from Rowan  W. Gould, Acting Director of Fish and Wildlife Service, to  Regional Directors 1 (Mar. 24, 1995), reprinted in J.A. 79 ("If  uncontrolled, mute swans pose a serious threat to the ecological integrity of many areas, including the National Wildlife  Refuge System and other Federal lands committed to the  maintenance of natural wildlife diversity.").


7
Generally, state governments have assumed responsibility  for the management of mute swan populations.  Recently, however, Department of the Interior ("DOI") officials at the  Blackwater National Wildlife Refuge secured a permit from  the Maryland Department of Natural Resources to kill up to  50 mute swans per year.  DOI officials claim to have taken  only ad hoc measures to control mute swan populations, and  they assert that "no concerted effort to eradicate mute swans  from any refuge has been undertaken by the [Fish and  Wildlife Service]."  Ronald E. Lambertson Decl. p 8, reprinted in J.A. 67.

B. Statutory and Regulatory Background

8
The MBTA states that,


9
[u]nless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful ... to pursue, hunt, ... [or] kill ... any migratory bird ... included in the terms of the conventions between the United States and Great Britain [on behalf of Canada] ... , the United States and the United Mexican States ... , the United States and the Government of Japan ... , and the ... United States and the Union of Soviet Socialist Republics.


10
16 U.S.C.  703.  The MBTA does not define "migratory  bird" but merely refers to the treaties for a definition.  The  Secretary, however, has declared that:


11
Migratory bird means any bird, whatever its origin and whether or not raised in captivity, which belongs to a species listed in  10.13.


12
50 C.F.R.  10.12.  Section 10.13, in turn, lists "all species of  migratory birds protected by the [MBTA]."  50 C.F.R.   10.13.  The only swans on the List of Migratory Birds in   10.13 are trumpeter, tundra, and whooper swans.  The  Secretary's regulations do not explain why mute swans are  excluded from the List of Migratory Birds.


13
The four treaties to which the MBTA refers each provide  different definitions of covered birds.  The 1916 treaty with  Great Britain ("the Canada Treaty") broadly defines migratory birds to include "Anatidae or waterfowl, including brant,  wild ducks, geese, and swans."  Convention for the Protection of Migratory Birds, Aug. 16, 1916, art. I,  1(a), U.S.-Gr.  Brit., 39 Stat. 1702.  The Proclamation to the Canada Treaty  refers to birds that migrate across national borders:


14
Whereas, Many species of birds in the course of their annual migrations traverse certain parts of the United States and the Dominion of Canada;  and Whereas, Many of these species are of great value ... but are nevertheless in danger of extermination through lack of adequate protection during the nesting season or while on their way to and from their breeding grounds.


15
Id.  Canada and the United States amended the 1916 treaty  with a 1995 Protocol that revised the definition of migratory  birds to include "Anatidae, or waterfowl (ducks, geese and  swans)."  Protocol Amending the 1916 Convention for the  Protection of Migratory Birds in Canada and the United  States, Dec. 14, 1995, art. I,  1, U.S.-Can., Sen. Treaty Doc.  104-28.


16
The 1936 treaty with Mexico also defines migratory birds  broadly to include "Familia Anatidae."  Convention for the  Protection of Migratory Game Birds and Game Mammals,  Feb. 7, 1936, art. IV, U.S.-Mex., 50 Stat. 1311.  The introductory Proclamation to the Mexico Treaty refers to "migratory"  birds without regard to their origin:


17
Whereas, some of the birds denominated migratory, in their movements cross the United States of America and the United Mexican States, in which countries they live temporarily;


18
Whereas it is right and proper to protect the said migratory birds, whatever may be their origin, in the United States of America and the United Mexican States, in order that the species may not be exterminated.


19
Id.


20
The 1972 treaty with Japan defines migratory birds more  specifically:


21
(a) The species of birds for which there is positive evidence of migration between the two countries from the recovery of bands or other markers;  and (b) The species of birds with subspecies common to both countries or, in the absence of subspecies, the species of birds common to both countries.  The identification of these species and subspecies shall be based upon specimens, photographs or other reliable evidence.


22
Convention for the Protection of Migratory Birds and Birds  in Danger of Extinction, and Their Environment, Mar. 4,  1972, art. II,  1, U.S.-Japan, 25 U.S.T. 3331.  The Japan  Treaty also contains an annex that specifically lists "species  defined as migratory birds."  Id. at art. II,  2(a).  The only  swan identified in the annex is the whooper swan, cygnus  cygnus.  Id. at Annex.


23
Finally, the 1976 treaty with the Soviet Union defines  migratory birds as:


24
(a) The species or subspecies of birds for which there is evidence of migration between the Soviet Union and the United States derived as a result of banding, marking or other reliable scientific evidence;  or


25
(b) The species or subspecies of birds, populations of which occur in the Soviet Union and the United States and have common flyways or common breeding, wintering, feeding, or moulting areas, and for these reasons there exists or could exist an exchange of individuals between such populations.  The identification of such species or subspecies will be based upon data acquired by banding, marking, or other reliable scientific evidence.


26
Convention Concerning the Conservation of Migratory Birds  and Their Environment, Nov. 19, 1976, art. I,  1, U.S.U.S.S.R., 29 U.S.T. 4649.  Similar to the Japan Treaty, the  Soviet Union Treaty includes an annex listing species by  name.  Only three swan species whooper, bewick's, and  whistling swans are listed in the Annex.  Id. at Annex.


27
The first regulations implementing the MBTA simply imported the language of the Canada treaty.  See, e.g., U.S.  Dep't of Agric., Bureau of Biological Survey, 11 Service and  Regulatory Announcements 1, 2 (Aug. 21, 1916) (defining  migratory birds, in relevant part, as "Anatidae or waterfowl,  including brant, wild ducks, geese, and swans"). After a few  rounds of statutory changes that placed regulatory authority  with the President and the Secretary of Interior, the President, by Executive Order, delegated sole authority to the  Secretary to promulgate regulations under the MBTA.  See  Exec. Order No. 10,250, 16 Fed. Reg. 5,385 (June 7, 1951). The Secretary initially maintained the established definition  of migratory birds.  See, e.g., 50 C.F.R.  10.1 (1961).


28
In 1965, the Secretary issued a Notice of Proposed Rule  Making which sought to, among other things, "further clarify  and define the term 'migratory birds' " by adding a requirement that birds be "indigenous to the United States."  30  Fed. Reg. 5,640 (Apr. 21, 1965).  These regulations were  adopted in 1965, see 30 Fed. Reg. 7,571 (June 10, 1965), but  the indigenous requirement was short-lived.  Two years later,  the Secretary amended the MBTA regulations by adding a  definition of migratory birds that did not include the indigenous requirement.  See 32 Fed. Reg. 10,855 (July 25, 1967)  (printing new 50 C.F.R.  1.11).  This new definition did not,  however, replace the old definition, thus leaving the regulations with two different definitions of migratory birds.


29
These dual definitions remained in place until 1973, when  the Secretary deleted 50 C.F.R.  1.11 and changed the  definition of migratory birds to include


30
all birds, whether or not raised in captivity, included in the terms of the [migratory bird] conventions between the United States and any foreign country.


31
38 Fed. Reg. 22,015, 22,016 (Aug. 15, 1973).  The Secretary  also published a list of covered migratory birds, 50 C.F.R.   10.13, "[f]or reference purposes only."  Id. at 22,017.  The  only swans included on the final list were the trumpeter and  whooper swans.  See 50 C.F.R.  10.13 (1973).


32
The Secretary proposed revised regulations in 1984 that  added a different qualification to the List of Migratory Birds.  See 49 Fed. Reg. 23,197, 23,198 (June 5, 1984).  The operative  definition of migratory birds remained the same, but the  Secretary proposed to "[a]dd species that are of regular  occurrence in the United States that were not included on the  last List," and also to "[d]elete species whose occurrence in  the United States is deemed accidental, i.e., the U.S. is  outside the species' normal range and occurrence is infrequent and irregular."  Id.  The Secretary adopted these  changes, see 50 Fed. Reg. 13,708 (Apr. 5, 1985), and the  regulations remained in effect until this lawsuit was filed.

C. Procedural Background

33
Appellant Hill, appearing pro se, filed a complaint in District Court on July 16, 1999, which was amended on July 30,  1999.  Her principal claim was that the Secretary's failure to  include the mute swan on the List of Migratory Birds  protected under the MBTA was arbitrary and capricious  under the Administrative Procedure Act ("APA").  On September 27, 2000, the District Court granted summary judgment for the federal defendants.  The trial court rejected the  defendants' argument that Hill lacked standing to pursue her  claim.  On this point, the District Court found that the  "Federal Defendants' failure to protect the mute swan under  the MBTA is causally linked to the diminished presence of  the swan in and about [Hill's] property on the Eastern Shore  of Maryland," that the decline in mute swans reduces Hill's  aesthetic enjoyment of her property, and that the decline  "will be ameliorated if Federal Defendants include the bird  under the MBTA."  Hill v. Babbitt, Civ. Act. No. 00-01926,  slip op. at 5 (D.D.C. Sept. 27, 2000).  On the merits, the trial  court found that the treaties underlying the MBTA impose  conflicting obligations, thus creating an ambiguity in the  MBTA with regard to whether mute swans must be included  on the list of protected migratory birds.  Faced with this  purported ambiguity, the District Court held that "agency  deference is the most plausible alternative" and granted  judgment for the federal defendants.  Id. at 13.  The trial  court also ruled against Hill on her NEPA claim, holding that  she had introduced nothing to support the contention that the  government was obliged to conduct an Environmental Impact Statement ("EIS") under the NEPA.  Id. at 6 n.15.  Hill filed  a notice of appeal on November 27, 2000.

II. Discussion
A. Jurisdiction

34
The Secretary no longer challenges Hill's standing to pursue her claims in federal court, and with good reason.  There  is no doubt that the District Court was correct in holding that  Hill satisfies the standing requirements of Article III.  See  Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., (TOC),  Inc., 528 U.S. 167, 183 (2000) ("environmental plaintiffs adequately allege injury in fact when they aver that they use the  affected area and are persons 'for whom the aesthetic and  recreational values of the area will be lessened' by the  challenged activity." (quoting Sierra Club v. Morton, 405 U.S.  727, 735 (1972)));  Wabash Valley Power Ass'n, Inc. v. FERC,  268 F.3d 1105, 1113 (D.C. Cir. 2001) (holding that if injury is  traceable to agency decision and a favorable decision by the  court will nullify the action that gave rise to injury, then  plaintiff has satisfied causation and redressability requirements of Article III standing).


35
Because the MBTA does not create a private right of action  or otherwise provide a process for judicial review, the Secretary's disputed failure to include the mute swan on the List of  Migratory Birds can only be challenged by Hill under the  APA.  Though the APA does not directly grant subject  matter jurisdiction to the federal courts, see Califano v.  Sanders, 430 U.S. 99, 105 (1977), challenges brought under  the APA fall within the reach of the general federal jurisdiction statute, 28 U.S.C.  1331.  Road Sprinkler Fitters Local  Union 669 v. Herman, 234 F.3d 1316, 1319 (D.C. Cir. 2000).


36
As Hill notes,


37
This case primarily presents the straight-forward question whether the Mute Swan (Cygnus olor) is a member of the family anatidae as that phrase is used in two treaties between the United States and, respectively, the  United Kingdom (on behalf of Canada) and Mexico, and hence are covered as a protected species under the Migratory Bird Treaty Act (MBTA), 16 U.S.C.  703 et seq.  The Department of the Interior has excluded Mute Swans from a regulatory list of species that it deems protected by the MBTA.  50 C.F.R.  10.13.  Such exclusion has led to numerous adverse actions including killing and egg destruction against Mute Swans, thus injuring those who, like plaintiff, derive immense aesthetic and cultural value from the presence of Mute Swans in our environment.


38
The case presents the further question whether the conduct of the Federal Defendants adverse to Mute Swans constitutes "major Federal action[]" requiring preparation of an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA).  42 U.S.C.  4332(2)(C).


39
Br. for Appellant at 3-4.  The District Court had subject  matter jurisdiction under 28 U.S.C.  1331 to hear these  claims, and this court has jurisdiction pursuant to 28 U.S.C.   1291.  We will address the two disputed issues in turn.

B. The MBTA and the Treaties

40
The MBTA covers all migratory birds, as defined by the  four cited treaties with Canada, Mexico, Japan, and the Soviet  Union.  The Government concedes that the most restrictive  treaty definition of migratory birds i.e., the one found in the Canada treaty governs the disposition of this case.  See  Alaska Fish & Wildlife Fed'n v. Dunkle, 829 F.2d 933, 941  (9th Cir. 1987) (holding that "[t]he United States-Canada  Convention is the most restrictive of the four treaties, and all  of the Secretary's regulations must be in accord with that  treaty").  The Government also concedes that under the  literal terms of the most restrictive treaty the Canada  treaty "swans," without limitation, are migratory birds and  therefore presumptively within the protected class.  Furthermore, Government Counsel acknowledged at oral argument  that, because of the seasonal movements of some mute swans  across the U.S.-Canada border, mute swans are undoubtedly "migratory birds."  Finally, no party doubts the authority of  the Secretary, under  712(2) of the MBTA, to issue regulations that create and refine lists of migratory birds, such as  the list promulgated at 50 C.F.R.  10.13.  The only MBTA  issue before this court, therefore, is whether the Secretary  was justified in excluding the mute swan from the List of  Migratory Birds.


41
Under the familiar Chevron analysis, "the reviewing court  must first exhaust the traditional tools of statutory construction to determine whether Congress has spoken to the precise  question at issue."  Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044,  1047 (D.C. Cir. 1997) (quotations and citations omitted).  The  parties, unsurprisingly, disagree over the meaning of the  MBTA.  Hill argues that a simple syllogism decides this case: the operative treaty defines migratory birds as "swans"; mute swans are, indeed, swans;  and, therefore, the treaty  covers mute swans.  The Secretary, on the other hand, claims  that the statute's purported simplicity actually ensconces its  ambiguity:  the MBTA does not define migratory birds;  while  the Canada Treaty references all swans, its Proclamation  speaks only of birds that migrate between the U. S. and  Canada;  though swans are at home all over the world, only  some swans migrate between the U.S. and Canada or are  native to the signatory nations;  therefore, it would make no  sense to include every swan species within the protective  ambit of the MBTA.  And, of course, the Secretary claims  that any statutory ambiguity is properly resolved pursuant to  the agency's delegated authority to regulate under the  MBTA.


42
Hill clearly has the better of this argument, for the statute  appears as plain as she suggests.  The Secretary's argument  is specious:  it rests on a convoluted and strained attempt to  find ambiguity where none appears.  Absent some limiting  language, references to "swans" and "family Anatidae," as are  found in the Canada treaty, undisputably include mute swans. We can discern no ambiguity.  And the literal terms of the  statute and treaty do not produce nonsensical results, as the  Government suggests.  Rather, the disposition of the principal issue in this case is very nearly governed by Chevron step  one, and that disposition favors appellant Hill.


43
Because this case implicates several aged treaties about  which the Secretary has said virtually nothing, we hesitate to  decide the matter under Chevron step one.  This hesitation  comes in part from our recognition of the rule that a court  must pay "great weight" to "the meaning given [to treaties]  by the departments of government particularly charged with  their negotiation and enforcement."  Kolovrat v. Oregon, 366  U.S. 187, 194 (1961).  In this case, however, we have nothing  more than the Secretary's List of Migratory Birds, with  nothing to explain why mute swans are excluded from the list. Thus, in a situation in which we would normally look to the  Government for guidance in assessing the meaning of disputed treaties, the record is barren.  We could, of course, simply  apply Chevron step one in Hill's favor, for the Canada treaty  and the MBTA, together, support her claim.  Instead, we will  give the Government the benefit of the doubt, at least for  now, and analyze the case under Chevron step two.  In other  words, because the Secretary has yet to address the issue at  hand, we will assume, arguendo, that the disputed agency  action is not positively foreclosed by the plain meaning of the  statute.  We do not mean to say, however, that the Secretary  can overcome the apparent plain meaning of the statute and  the treaties if and when the Secretary offers an explanation  for the List of Migratory Birds.  See Prod. Workers Union of  Chicago v. NLRB, 793 F.2d 323, 328 (D.C. Cir. 1986) ("When  the intent of Congress is clear ... the court must give effect  to the intent of Congress regardless of the agency's opinion.").  We leave that question for another day.


44
Turning to Chevron step two, we must determine "whether  the agency's answer is based on a permissible construction of  the statute."  467 U.S. at 843.  In other words, we must defer  to the Secretary's interpretation of the MBTA only if it is  reasonable and consistent with the statutory purpose and  legislative history.  See Bell Atl. Tel. Cos., 131 F.3d at 1049. If the terms of the disputed statute (and, in this case, the  disputed treaties) militate against the agency's position, and if the agency has offered no support for its decision, then the  agency decision cannot be upheld under Chevron step two.


45
This court cannot presume the reasonableness of an agency's decision when the terms of the statute (and treaties)  appear to be contrary to that decision and the agency has  failed to justify its position.  Counsel for the Secretary offered several arguments supporting the reasonableness of the  mute swan's exclusion from the List of Migratory Birds:  the  mute swan is not a native species, the mute swan's aggressive  and territorial nature causes harm to other protected species  and habitats, and extending protection to the mute swan  might affect other treaty obligations of the United States and  statutory obligations of the Secretary.  We have no idea  whether these arguments are pertinent, and, if so, whether  they are compelling.  It does not matter, however, for we do  not assume that the arguments of counsel are the same as the  Secretary's official position.  In fact, the agency record in this  case is utterly silent on any basis, let alone any reasonable  basis, to support the exclusion of mute swans from the List of  Migratory Birds.  And, it is well understood that "[t]he  courts may not accept appellate counsel's post hoc rationalizations for agency action."  Burlington Truck Lines, Inc. v.  United States, 371 U.S. 156, 168 (1962).


46
In arguments to this court, counsel for the Secretary  contended that the non-native character of the mute swan  justified the bird's exclusion from the list.  However, no  agency decision explains the definition of "native," whether  the mute swan is native or non-native, and most importantly,  why the native or non-native character of a species is relevant  under the statute and treaties.  This complete absence of  support from the record is especially important here, because  Hill argues that other birds on the List of Migratory Birds  are non-native under many common definitions.  See Reply  Br. for Appellant at 20-21.  To uphold the Secretary's exclusion on this ground would require this court to determine that  an unpublished, unmentioned, undefined, and uncertain factor  could reasonably exclude an otherwise qualified bird from  protection.


47
Government counsel also claimed that the mute swan's  destructive and aggressive nature support the mute swan's  exclusion from the List of Migratory Birds.  The Secretary  points to nothing in the statute, treaties, or administrative  record to support this conclusion, however.  In fact, it is  unclear how such a consideration could ever overcome a  statutory requirement to the contrary.


48
Likewise, Government counsel's argument that inclusion of  the mute swan on the List of Migratory Birds may affect the  Secretary's other statutory and treaty obligations is meritless.  According to Counsel, the North American Wetlands  Conservation Act ("Conservation Act"), 16 U.S.C.  44014414, indicates that Congress passed other legislation with  the "understanding that the MBTA and the migratory bird  treaties require the United States to protect only native  species."  Br. of Appellees at 30.  We disagree.  The Conservation Act defines migratory birds as "all wild birds native to  North America that are in an unconfined state and that are  protected under the [MBTA]" 16 U.S.C.  4402(5).  To qualify as a migratory bird under the Conservation Act, two  separate, independent conditions must be met:  the bird must  be a native wild bird and protected under the MBTA.  The  Conservation Act does not in any way limit the definition of  migratory bird under the MBTA and, by placing an additional  limitation on the MBTA's definition, Congress expressly excluded some birds that qualify as migratory birds under the  MBTA from the Conservation Act's reach.  Indeed, had  Congress evinced the understanding claimed by counsel, the  phrase "all wild birds native to North America" would merely  duplicate the MBTA's definition.  Furthermore, including the  mute swan in the List of Migratory Birds does not prevent  the Secretary from controlling any potential harmful effects  caused by mute swans, because 16 U.S.C.  704 delegates  authority to the Secretary to adopt regulations allowing the  "hunting, ... capture, [or] killing" of protected migratory  birds.


49
In sum, the Secretary points to nothing in the statute,  applicable treaties, or administrative record that justifies the  exclusion of mute swans from the List of Migratory Birds.   And, as noted above, both the MBTA and the Canada treaty  support Hill's claim that the mute swan must be included on  the list.  The Secretary's decision therefore fails review under Chevron step two.

C. National Environmental Policy Act

50
Appellant Hill also argues that the NEPA required the  Secretary to prepare an EIS with regard to its treatment of  mute swans.  The NEPA requires an EIS for any "major  Federal action[] significantly affecting the quality of the  human environment."  42 U.S.C.  4332(2)(C).  In her brief  to this court, Hill identified several actions which she claims  qualify as major federal action:  obtaining a permit from the  Maryland Department of Natural Resources ("MDNR") to  take up to 50 mute swans per year;  cooperating with the  MDNR's Mute Swan management efforts, including assisting  in burn management programs that affect mute swan nesting  sites;  cooperating with the Atlantic Flyway Council and  endorsing its recommendations to manage the mute swan  population;  instructing Fish and Wildlife Regional Directors  to control mute swans on federal land;  and deciding to  exclude mute swans from coverage under the MBTA.


51
Before the District Court, however, Hill only argued that  the Secretary was required to conduct an EIS under the  NEPA "for the trumpeter swan, before massive reintroduction efforts on a national level began" and before the "massive  killing and mutilation of mute swans" began.  Amended Complaint at 4-5.  The District Court found, and Hill does not  now dispute, that the "Federal Defendants have submitted  uncontroverted declarations which indicate none of them has  engaged in an ongoing or proposed program to reintroduce  trumpeter swans to the Atlantic Flyway or to exterminate  mute swans."  Hill v. Babbitt, slip op. at 6 n.15.  Because the  two grounds for invocation of the NEPA raised below were  dismissed without a dispute of material fact below, Hill cannot  now identify any "major Federal actions" properly before this  court that would require the preparation of an EIS.  Accordingly, the District Court committed no error in dismissing  Hill's NEPA claims.

III. Conclusion

52
For the reasons given above, we reverse the judgment of  the District Court on Hill's MBTA claim, grant judgment for  appellant, and vacate the Secretary's List of Migratory Birds,  codified at 50 C.F.R.  10.13, insofar as the list excludes mute  swans.  We affirm the District Court's entry of summary  judgment on Hill's NEPA claims.


53
So ordered.

