Continuing its systematic rollback of Obama-era policies and regulations that centralized power in the hands of Washington bureaucrats and their political allies, the Trump administration is moving to bring much-needed clarity to a century-old bird-protection statute whose enforcement has vexed courts and government officials for decades.
The original Migratory Bird Treaty Act (MBTA) of 1918 was enacted to implement the 1916 Convention with Great Britain (for Canada) for the protection of migratory birds whose flyways traverse international borders. Through amendments over the years, the MBTA now covers implementation of similar treaties between the U.S. and Mexico, the U.S. and Japan, and the U.S. and the Soviet Union (now Russia).
Administered by the Interior Department’s Fish & Wildlife Service (FWS), the law makes it illegal to “pursue, hunt, take, [or] capture” any migratory bird “by any means whatever [and] at any time or any manner.”
Lack of Clarity over When to Prosecute
While few doubt the law’s good intentions, enforcing the broadly worded statute has been difficult, especially when it comes to actions involving the accidental or incidental killing of migratory birds. In two high-profile cases – the wreck of the Exxon Valdez in Alaska in 1989 and the explosion of the Deepwater Horizon in the Gulf of Mexico in 2010 – responsibility for the harm done to birds appeared clear cut. Federal prosecutors used the law to go after the offending oil companies – Exxon Mobil for the spill in Alaska and BP for the damage in the Gulf.
But in a 2011 case in North Dakota involving Continental Resources and five other oil companies, a federal judge dismissed criminal charges brought by the Obama FWS against three of the firms and vacated settlements the other three companies had made with federal prosecutors. All six companies had been charged under the MBTA with failure to put netting over their oil waste pits.
Shortly before Trump’s inauguration, the Obama Interior Department scrambled to issue a new regulation under the MBTA that, according to Trump officials, would have criminalized all actions that killed migratory birds, whether purposeful of not. But the clock ran out before the regulation could be finalized.
Picking up where their predecessors had left off, Interior Secretary Ryan Zinke’s Interior Department started working on its own legal interpretation of the MTBA. Penned by DOI’s Trump-appointed solicitor Ryan Nelson, the new interpretation was released Jan. 10. In the solicitor’s opinion, applying the law “to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and fine of $15,000 for each and every bird injured or killed.”
Under Interior’s new interpretation, a company would be in violation of the law only when it is “engaged in an activity, the object of which was to render an animal subject to human control.”
Letter from the Swamp
This effort to bring legal clarity to the MBTA, and to provide a degree of guidance to prosecutors, courts, and potential defendants, raised the ire of a group of 17 former DOI officials, who served in both Republican and Democratic administrations. In a Jan. 10 letter to Secretary Zinke, they urged DOI to reconsider its action.
“This a new, contrived legal standard that creates a huge loophole,” in the existing law, they wrote, “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.’”
What the letter-writers don’t bother to mention is that Obama officials at FWS had discovered the MBTA’s loose language and were abusing the statute to suit their political agenda. For example, Obama’s FWS was already using the MBTA to prohibit mountain hiking and climbing in certain areas, and to threaten people with criminal charges. If the Trump administration were to accept the premise of the gang of 17 letter, it would lead the way to a permitting system every bit as onerous as required under the Endangered Species Act, and arguably worse, since the migratory bird in question need not even be threatened or endangered at either the species level or population level.
Washington’s swamp is inhabited by creatures whose survival skills include knowing how to use the administrative regulatory state to their advantage. If that means bending a bird-protection law into an instrument of land-use control with the threat of federal prosecution, so be it. By injecting common sense into its interpretation of the Migratory Bird Treaty Act, Secretary Zinke’s Interior Department is fulfilling its obligation to the protection of wildlife and the rights of ordinary citizens.