The Trump Administration Takes Aim at Migratory Birds

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Attorneys argue that Department of Interior enforcement practices threaten migratory birds.

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The United States has signed treaties to end wars and to ban the use of nuclear weapons—and on four occasions throughout the 20th Century, it has also done so to protect migratory birds. But those treaties and the birds they protect may be at risk due to a relaxed enforcement policy the U.S. Department of the Interior has adopted under the Trump Administration, argue two attorneys in a recently published article.

To protect migratory birds from the ever-increasing threats, Jessica Scott, a professor at Vermont Law School, and Andrea Folds, an attorney with Earthjustice, urge the Interior Department to reverse course and return to what they consider long-standing agency practices.

The Migratory Bird Treaty Act (MBTA)—the statute the Interior Department now says it will enforce less strenuously—has not lacked controversy in the past. Scott and Folds explain that when Congress, early in the 20th Century, realized that the killing and consumption of migratory birds was not sustainable, it spent nearly a decade, from 1904 to 1913, attempting to pass bills that would protect migratory birds. That effort eventually culminated in the Weeks-Mclean Law, which was immediately, and successfully, challenged in court.

Faced with such a setback in the courts, Congress invoked the Treaty Clause of the U.S. Constitution to protect the birds. With the ratification of a treaty with the United Kingdom in 1917, Congress resolved to pass new legislation, the MBTA.

But critics of the act were not going to let Congress go without another challenge. This time around, the challenge culminated in a Supreme Court case, Missouri v. Holland, which upheld the act. In doing so, Justice Oliver Wendell Holmes set the tone for the future of the MBTA by stating that the act involved “a national interest of the very first magnitude” and that, “but for the treaty and the statute, there soon might be no birds for any powers to deal with.”

Scott and Folds argue that the Interior Department has consistently recognized the magnitude of the MBTA’s purpose through extensive enforcement practices. The act declares that no person may “hunt, take, capture, kill… or possess” a protected bird. Scott and Folds explain that, historically, the Interior Department has interpreted this prohibition to include both intentional and incidental “takings” of birds—an understanding that was formalized by the Obama Administration.

But President Donald Trump’s Interior Department recently announced that it would change course. By rescinding the Obama era memo and replacing it with its own, the Interior Department announced that it would no longer prosecute incidental takings of migratory birds. Scott and Folds argue that this new interpretation of the MBTA is not only inconsistent with the historical approach taken by the Interior Department in enforcing the act but also that, by excluding incidental takings, the Department will leave migratory birds vulnerable to the greatest threats currently facing them.

Scott and Folds explain that under its historical approach to enforcement, the Interior Department prosecuted negligent or reckless acts that resulted in the death of migratory birds in addition to intentional killings. For example, in United States v. Moon Lake Electric Association, the Interior Department prosecuted and secured a conviction against an electric company with power lines that were killing migratory birds. Similarly, the Interior Department has prosecuted other parties whose actions unintentionally resulted in the death of birds, including the military, pesticide manufacturers, and the U.S. Forest Service.

Scott and Folds argue that the threat of prosecution under the act was as effective, if not more effective, at protecting migratory birds than actual prosecution. They point out that under the historical regime, the Interior Department convinced power companies to increase the distance between wires, communications companies to put blinking lights on top of their towers, and wind companies to study flight patterns, among other things, with the goal of preventing bird deaths. Critics of the Trump Administration’s change argue that with the threat of prosecution gone, companies no longer have an incentive to maintain these preventative measures.

To demonstrate the importance of incidental takings prosecution, Scott and Folds point to a study showing that agricultural expansion and logging pose a threat to almost twice as many birds as hunting does. Thus, they argue, the Trump Administration’s change will leave many previously protected birds at risk, as many of the birds covered under the MBTA are not regularly subject to intentional killings.

Proponents of the Trump Administration’s change, on the other hand, assert that the Interior Department’s modified interpretation is consistent with the true purpose of the act—to criminalize improper hunting and poaching practices. In addition, supporters of the change have generally “praised the new approach for ensuring ‘that lawful activities are not held hostage to unnecessary threats of criminalization.’” Some of the Interior Department’s own staff members have also celebrated the decision, stating that the new interpretation clears up “tremendous uncertainty” over how the agency enforces the act.

But Scott and Folds disagree. Although they put their support behind a legal challenge initiated by the Audubon Society, alleging that the Interior Department’s reinterpretation of the MBTA exceeded its statutory authority and was arbitrary and capricious, the trial court recently closed the case in favor of the agency.

With the Audubon Society’s case closed, it is unclear what the future holds for both migratory birds and for the Trump Administration’s new enforcement policies.