A federal judge has reversed the rule changes formalized by the U.S. Fish and Wildlife Service (USFWS) earlier this year regarding the unintentional (incidental) injury or death not prohibited under the Migratory Bird Treaty Act of 1918 (MBTA).
U.S. District Judge Valerie Caproni used a quote from To Kill a Mockingbird, striking down the opinion issued by Daniel Jorjani, the solicitor of the U.S. Department of the Interior, in 2017.
“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.”
Jorjani had issued a legal opinion that concluded the MBTA’s prohibitions on “Pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions intentionally or purposefully ‘taking’ migratory birds, their nests or their eggs.”
Section 2 of the MBTA states, “Unless and except as permitted by regulations made as hereinafter provided, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill…”
The plaintiffs, six environmental groups and eight states, asserted the Jorjani opinion states the MBTA only covers take that is with the specific intent to kill or take migratory bird species.
Caproni noted in her opinion the Jorjani opinion specifically states, “An individual or entity may destroy an active nest while conducting any activity where the intent of the action is not to kill migratory birds or destroy their nests or contents.”
USFWS implementation
In January of this year, USFWS held a scoping period seeking to clarify the rules of the MBTA to include the intentional taking of birds.
Jim Magagna, executive vice president of Wyoming Stock Growers Association (WSGA), stated in January, “WSGA welcomes the efforts of the USFWS and the Department of the Interior to adopt a long-overdue commonsense definition of the prohibition of ‘take’ under the MBTA.
“This action will enable and encourage farmers, ranchers and other landowners to become true partners in providing habitat and safety for migratory birds rather than operating in fear of being prosecuted for an unintended take.”
According to an analysis done in 2018 by Jessica Scott, assistant professor at Vermont Law School, and Andrea Folds, associate legislative counsel at Earthjustice, the USFWS used its authority to prosecute violators prior to the Jorjani opinion just 14 times in the past two decades.
In May 2020, USFWS released a draft environmental impact statement (EIS) which considered three alternatives. They included regulations excluding intentional actions directed at migratory birds; withdrawing the opinion and regulating under the MBTA to include incidental take; or taking no action. The EIS decided to take no action and to implement the MBTA consistent with the direction given in the opinion.
“With five federal circuit courts of appeals divided on this question, it is important to bring regulatory certainty to the public by clarifying the criminal scope of the MBTA only reaches to conduct intentionally injuring birds,” said Assistant Secretary for Fish and Wildlife and Parks Rob Wallace at the time of the scoping period.
“That said, we will continue to work collaboratively with states, cities, conservation groups, industries, trade associations and citizens to ensure that best practices are followed to minimize unintended harm to birds and their habitats.”
Working collaboratively was addressed in the “no action” alternative proposed in the draft EIS.
Reactions
“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 MBTA 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.”
California Attorney General Xavier Becerra, a plaintiff in the suit, said in a statement he hopes the Department of the Interior and USFWS “renew their commitment to acting in the best interest of the public.”
Kathleen Sgamma, president of the Western Energy Alliance, said in an email to the Audubon Society, “One district court ruling from New York will not be the final word,” indicating there will be further litigation in the matter. Sgamma pointed to three other circuit courts’ ruling in support of the Jorjani opinion.
The Interior Department or USFWS has not indicated how they will proceed with enforcement after the ruling. Caproni indicated in the ruling, “[The] Interior presents no indication that vacating the opinion will disrupt enforcement or other agency efforts or create disruptive uncertainty.
“Vacating the opinion simply undoes a recent departure from the agency’s prior longstanding position and enforcement practices.”
There has been no reaction from the agriculture or ranching industries regarding the decision. — Charles Wallace, WLJ editor
