Ex-officials decry easing bird rules
Interior Department’s reinterpretation of 1918 environmental law reduces scope of protections
WASHINGTON — A group of former Interior Department officials from both major parties who served under the past eight presidents pressed the Trump administration Wednesday to reconsider its move to ease restrictions against killing birds.
The 17 former political appointees and career officials, which include Senate-confirmed members of the Carter, Nixon, Ford, George H.W. Bush, Clinton, George W. Bush and Obama administrations, sent a letter to Interior Secretary Ryan Zinke asking him to reverse the department’s new interpretation of a century-old law used to prosecute oil firms and other companies for killing migratory birds. Career officials who served under Ronald Reagan also signed the letter.
“This legal opinion is contrary to the longstanding interpretation by every administration [Republican and Democrat] since at least the 1970s,” the group wrote in the letter, which was also sent to members of Congress.
Paul Schmidt, assistant director of migratory birds at U.S. Fish and Wildlife Service from 2003 -11, said former political appointees for both Republican and Democratic presidents readily signed the letter.
“It’s phenomenal to see this list,” said Schmidt, who started gathering signatures shortly after Interior’s principal deputy solicitor, Daniel Jorjani, quietly issued the legal interpretation three days before Christmas. “There wasn’t any hesitation on anyone’s part. We finalized that letter in short order.”
Signed in 1918, the Migratory Bird Treaty Act is one of the nation’s oldest environmental laws. Passed so the nation complied with treaties it had with Great Britain — countries with which the United States shares migratory birds — the broadly worded law made it illegal to “pursue, hunt, take, [or] capture” any migratory bird “by any means whatever [and] at any time or in any manner.”
In the new solicitor’s opinion, Interior said 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 a $15,000 fine for each and every bird injured or killed.”
Under the 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.”
“This is a new, contrived legal standard that creates a huge loophole” in the existing act, the letter-writers said, “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.’ ”
The question of how to define what sort of actions should be grounds for prosecution has vexed previous administrations, and the Fish and Wildlife Service had worked toward the end of Obama’s second term to craft a regulation that would provide more specific permitting guidelines. But that effort failed to come to fruition, and Interior issued a solicitor’s opinion on Jan. 10, 2017, in an effort to lay out some parameters for violations of the law.
Interior did not respond to requests for comment Thursday. But in late December, Interior’s deputy director of communications, Russell Newell, said in an email that the opinion issued just days before President Trump’s inauguration “criminalized all actions that killed migratory birds, whether purposeful or not.”
The new opinion issued on Dec. 22, Newell said “returns to the intent of the law — Interior’s action on the [Migratory Bird Treaty Act] is a victory over the regulatory state.”
The law was prominently wielded by the federal government against major oil companies after spills following the crash of the Exxon Valdez in 1989 and the explosion of the Deepwater Horizon offshore drilling rig in 2010, accidents that each killed hundreds of thousands of birds.
In practice, federal prosecutors tended to bring cases against companies that had failed to take precautionary measures aimed at averting bird deaths. Schmidt, the former Fish and Wildlife Service official who organized the letter, said a motorist striking and killing a bird, for example, “might be a technical violation. But it would be insane to take on a prosecution.”
“Discretion,” he added, “has been successfully used to change corporate behavior to minimize takes” — or, that is, kills. In the letter, Schmidt and the others cite Interior’s work with oil producers to ensure exposed crude oil waste pits were covered with nets as an example of the law being put to good use.
The National Resources Defense Council, which is among the many environmental groups challenging Trump administration’s environmental rollbacks in court, said it expected to take legal action regarding the Interior’s decision as well.