The Mass Murder of Migratory Birds across America
29 April 2019
The Migratory Bird Treaty Actmakes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to Federal regulations.
Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to … kill … any migratory bird….
This memorandum of 30 pages confirmed the department’s policy over preceding decades. Solicitor Hilary Tompkins pointed out that, regarding some disputed words in the law:
… even if the traditional common-law meaning of “take” introduces some ambiguity as to whether that term applies to incidental take, “kill” is unambiguous.
All parties involved in this dispute have acted in good faith, and there is case law which supports the legal arguments both sides have presented. Nevertheless, the criminalization of lawful, commercial activity which may indirectly injure or kill migratory birds is not warranted under the Migratory Bird Treat Act as it is currently written.
This Court believes that it is highly unlikely that Congress ever intended to impose criminal liability on the acts or omissions of persons involved in lawful commercial activity which may indirectly cause the death of birds protected under the Migratory Bird Treaty Act.
Representatives of the oil and gas industry, among others, then lobbied DOI [Interior Dept.] to issue a new directive that would eviscerate any obligation to take migratory bird impacts into consideration when engaging in various industrial activities. For example, on August 31, 2017, the Western Energy Alliance, which represents oil and natural gas companies, sent Secretary of the Interior Ryan Zinke a letter complaining that the “implementation and enforcement of incidental take of migratory birds (including nests and their habitat) … is inhibiting oil and natural gas development.” The letter urged Secretary Zinke to issue “guidance that [the] MBTA [Migratory Bird Treaty Act] does not give FWS the authority to regulate incidental take for [sic] migratory birds.”
On November 3, 2017, the Director of Government Relations for the Independent Petroleum Association of America wrote to the Deputy Director of DOI’s Office of External Affairs with the subject line “MBTA” asking, “Any word on the solicitor’s opinion yet?”
No agency possesses discretion whether to comply with procedural requirements such as NEPA. The relevant information provided by a NEPA analysis needs to be available to the public and the people who play a role in the decision-making process. This process includes the President.
This is a new, contrived legal standard that creates a huge loophole in the MBTA [Migratory Bird Treaty Act], allowing companies to engage in activities that routinely kill migratory birds so long as they were not intending that their operations would “render an animal subject to human control.” Indeed, as your solicitor’s opinion necessarily acknowledged, several district and circuit courts have soundly rejected the narrow reading of the law that your Department is now embracing….
The MBTA can and has been successfully used to reduce gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm. Your new interpretation needlessly undermines a history of great progress, undermines the effectiveness of the migratory bird treaties, and diminishes U.S. leadership.
The mission of the Service is to work with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people. Migratory bird conservation remains an integral part of our mission.
For decades Defendants [US government agencies] have construed the MBTA [Migratory Bird Treaty Act], consistent with its plain language, as protecting migratory bird populations from foreseeable “incidental” killing or “take” caused by major industrial activities that are not specifically directed at migratory birds but nevertheless kill them in large numbers. This interpretation has helped to conserve migratory birds for decades in keeping with the purpose of the MBTA and the international treaties the Act implements.
The Jorjani opinion is inconsistent with the Act’s text and purposes, is contrary to defendants’ previous longstanding interpretation of the Act and decades of consistent application of that interpretation, drastically limits the scope of the Act, subjects migratory birds to increased likelihood of death or injury from industrial and other human activities that immediately take or kill or are foreseeably likely to take or kill migratory birds, and harms the States’ sovereign, ecological, and economic interests in robust federal protections of migratory birds.