Former wildlife officials challenge interior department on migratory fowl
The Washington Post
A group of former Interior Department officials from both major parties who served under the past eight presidents pressed the Trump administration to reconsider its move to ease restrictions against killing migratory birds.
The 17 former political appointees and career officials, who include Senateconfirmed members of the Nixon, Ford, Carter, Reagan, 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.
“This legal opinion is contrary to the long-standing interpretation by every administration [Republican and Democrat] since at least the 1970s,” the group wrote in the letter, which also was sent to members of Congress.
For years, many conservatives complained that the Obama administration selectively was enforcing regulations that protect migrating birds from being killed at industrial sites, giving a pass to solarpower companies while cracking down on bird deaths at coal- and windpower sites. On Jan. 10, 2017, days before President Barack Obama left office, his Interior Department issued a solicitor’s opinion that banned killing migrating birds for nearly any reason.
Interior’s current deputy director of communications, Russell Newell, said in an email last year that the opinion issued just days before President Donald Trump’s inauguration “criminalized all actions that killed migratory birds, whether purposeful or not.”
But in reversing that controversial law, the Trump administration has been accused of moving the pendulum so far to the other side that most businesses would be forgiven for unintentional industrial bird deaths.
Originally adopted in 1918 with later additions, the Migratory Bird Treaty Act is one of the nation’s oldest environmental laws. It was passed so the nation could comply with treaties it had signed with countries that share migratory bird routes with the United States. The broadly worded law made it illegal to kill or otherwise harm such a bird except under the terms of a valid permit issued pursuant to federal regulations. The exception made it possible for populations of migratory game birds to be managed through hunting quotas agreed upon by an international committee, with hunters licensed by the federal government.
In the new solicitor’s opinion, Interior said applying the Obama interpretation “to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, THIS WEEK: The current interpretation of the Migratory Bird Treaty Act will result in more birds dying in industrial accidents and fewer available to hunters. • Yes • No • LAST WEEK: Pennsylvania’s general fund, acquired through taxes, should be tapped to enable the Game Commission to continue providing services during an upcoming audit of the agency. threatening up to six months in jail and a $15,000 fine for each and every bird injured or killed.”
The law prominently was 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 prec a u t i o n a r y measures aimed at averting bird deaths. Paul 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 [kills].” In the letter to the Interior Department, 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.
Although the law has often been used as leverage in negotiations between government officials and private companies, some prosecutions under the law have stirred controversy. In a 2011 case in North Dakota involving Continental Resources and five other oil companies, Fish and Wildlife asked the U.S. attorney there to press criminal charges because all six firms had been previously ticketed for not installing netting over their oil waste pits. But a federal judge dismissed the criminal charges against three of the companies the following year, and vacated the settlements that the three other firms had reached with federal authorities.
Under the Trump 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.” In other words, the death of a migrating bird would be a criminal act only if the killing was intentional.
“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 new opinion issued 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 Natural Resources Defense Council, which is among the many environmental groups challenging the Trump administration’s environmental rollbacks in court, said it expected to take legal action regarding Interior’s decision as well.
“The administration has rolled back decades of precedent, and we’re exploring all avenues to challenge the move,” said Katie Umekubo, senior attorney at the organization. “There’s no question there will be legal challenges, given how extreme this new interpretation is.”
Meanwhile, congressional Republicans are working to curtail the law not just through reinterpretation, but by rewriting it. The House Committee on Natural Resources recently adopted an amendment by Rep. Liz Cheney (R-Wyo.) that would abolish incidental take as a legal violation.
If the number of migrating game birds killed in industrial strikes were to increase, hunting quotas for game bird management would likely decrease proportionally. A recent memo from U.S. Fish and Wildlife stated that migratory bird populations are currently stable and international hunting quotas for this year’s seasons would be about the same as in 2017-18. Pennsylvania will issue statewide migratory bird hunting regulations based on those quotas.