Wetland Wednesday
August 19, 2020
Back in January (AKA pre-COVID) the U.S. Fish and Wildlife Service (FWS) proposed a rule that defines the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders. This rule was focused on the intentional injuring birds.
Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act. The goal of this new rule is to end all enforcement against the predictable and preventable killing of migratory birds from commercial activities.
In short, the idea of this rule is to encourage best management practices and eliminate enforcement on mainly energy related projects. The idea is that the killing of the birds is not intentional and therefore should not be prosecuted.
Many birding groups, environmental and conservation organizations voiced significant concern about this new rule. The FWS largely ignored the public comments and the new rule went into effect in the spring (AKA COVID season). However, Audubon being the largest of the concerned groups filed a lawsuit on May 24, 2020 in the southern district of New York Federal Court.
On August 11, 2020 (still COVID) United States District Court Judge Valerie Caproni ruled that the legal opinion which serves as the basis for the FWS rollback of the Migratory Bird Treaty Act does not align with the intent and language of the 100-year-old law. In her ruling, Judge Caproni found that the policy “runs counter to the purpose of the MBTA to protect migratory bird populations” and is “contrary to the plain meaning of the MBTA”.
“With today’s court decision, the administration should abandon the regulatory process it started to make this illegal bird-killing policy permanent,” said Sarah Greenberger, Interim Chief Conservation Officer for the National Audubon Society. “With the legal basis for its actions over the past year defeated the administration should expect more defeats in court if they try to lock-in their attempt to roll back the MBTA.”
Judge Caproni’s response to this opinion is clear: “There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds. Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only “some” kills are prohibited.”
“For decades this law has been a proven incentive to remind companies to do the right thing for wildlife,” added Greenberger.
Judge Caproni stated in her opening remarks: “It is not only a sin to kill a mockingbird, it is also a crime. That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”