Court decision ‘a much-needed win for migratory birds’

“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.”

So begins a 31-page decision by U.S. District Judge Valerie Caproni issued on Tuesday, August 11, overturning the Trump administration’s 2017 reinterpretation of the Migratory Bird Treaty Act that had upended decades of enforcement and let industry polluters entirely off the hook for killing birds.

The administration had argued the law only applied to intentional killing of birds and not “incidental” killing from industrial activities, including oil spills, electrocutions on power lines, development, and other activities that kill millions of birds every year.

The reinterpretation was first put in place in December 2017 through a legal opinion authored by the Solicitor of the Department of the Interior and former Koch Industries employee, Daniel Jorjani. This opinion was already allowing birds to be killed across the country.

After citing “To Kill a Mockingbird,” Caproni noted that the Migratory Bird Treaty Act makes it unlawful to kill birds “by any means whatever or in any manner” — thus the administration’s interpretation could not be squared with the plain language of the statute.

Had the Trump administration’s policy been in place at the time of the Deepwater Horizon oil spill in 2010, for example, British Petroleum would have avoided paying more than $100 million in fines to support wetland and migratory bird conservation to compensate for more than a million birds the accident was estimated to have killed.

The policy was put in place over objections from Canada, a co-signer of the treaty that led to the law. Lawsuits challenging the policy were brought in 2018 by six conservation groups — American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, National Wildlife Federation, and Natural Resources Defense Council — and the states of New York, California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, and Oregon.

Deplorable impacts on birds

Since the Jorjani opinion, Snowy Owls and other raptors have been electrocuted by perching on uninsulated power lines in Delaware, Maryland, Tennessee and North Dakota – with no consequences for the responsible utilities. Oil spills in Massachusetts, Idaho, and Washington, all of which caused the subsequent deaths of many birds, did not prompt any penalties. Landscapers in San Diego were reported to have thrown live Mourning Dove chicks into a tree shredder, prompting a U.S. Fish and Wildlife Services agent to go undercover to investigate. But the case was closed with no action taken due to the changed policy.

“The Trump administration’s policy was nothing more than a cruel, bird-killing gift to polluters and we’re elated it has been vacated,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “Birds are in real trouble across the United States. We must do everything we can to ensure they continue to brighten our skies and sing to us in the morning, for which they ask nothing in return.”

“The court’s decision is a ringing victory for conservationists who have fought to sustain the historical interpretation of the Migratory Bird Treaty Act to protect migratory birds from industrial harms,” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife. “The Department of the Interior’s wrong-head reinterpretation would have left the fate of more than 1,000 species of birds in the hands of industry. At a time when our nation’s migratory birds are under escalating threats, we should be creating a reasonable permit program to ensure effective conservation and compliance, rather than stripping needed protections for birds.”

‘Commonsense ruling’

“This decision confirms that Interior’s utter failure to uphold the conservation mandate of the U.S. Fish and Wildlife Service simply cannot stand up in a court of law,” said Katie Umekubo, senior attorney at the Natural Resources Defense Council. “The MBTA protects millions of birds and the Trump administration’s reckless efforts to rollback bird protections to benefit polluters don’t fool anyone.”

“Today’s commonsense ruling is a much-needed win for migratory birds and the millions of Americans who cherish them,” said Mike Parr, president of American Bird Conservancy. “The Migratory Bird Treaty Act is one of our nation’s most important environmental laws, and has spurred industry innovation to protect birds, such as screening off toxic waste pits and marking power lines to reduce collisions. This decision represents the next vital step on the path to restoring our nation’s declining bird populations and is a major victory for birds and the environment.”

“Like the clear crisp notes of the Wood Thrush, today’s court decision cuts through all the noise and confusion to unequivocally uphold the most effective bird conservation law on the books — the Migratory Bird Treaty Act,” said Sarah Greenberger, interim chief conservation officer for the National Audubon Society. “This is a huge victory for birds and it comes at a critical time. Science tells us that we’ve lost 3 billion birds in less than a human lifetime and that two-thirds of North American birds are at risk of extinction due to climate change.”

“Migratory birds are once again protected in the United States from industrial and other threats, thanks to a court ruling rejecting the Administration’s blatant misinterpretation of protections Congress put in the Migratory Bird Treaty Act,” said Mike Leahy, director of wildlife, hunting and fishing policy at the National Wildlife Federation. “Commonsense measures to protect birds like the Snowy Egret, Wood Duck, and Greater Sandhill Crane have been restored, and bird advocates, affected industries, and Congress can now focus on developing a permit program to reduce harms to birds and impacts to businesses through best management practices.”

Read our 2016 article about the Migratory Bird Treaty Act and the conservation of birds