Migratory Birds Dodge a Bullet (at least for now)

By John McFerrin

            Migratory birds will now receive greater protection than they otherwise might have, thanks to a decision by a United States District Court in New York.  The Court vacated a legal opinion issued by the United States Department of the Interior interpreting the Migratory Bird Treaty Act.  The interpretation dramatically narrowed the protections of the Act.  With the narrowing interpretation vacated, the birds now have the protections under the Act that they have traditionally had.  

Background (If you already know what the MBTA does, fly to the next section)

The Migratory Bird Treaty Act is the United States’ effort to implement a 1916 treaty between the United States, Mexico, and Great Britain (agreeing on behalf of Canada) to protect birds that migrate among the three countries.  The treaty was later expanded to include Russia and Japan.  It prohibits pursuing, hunting, taking, capturing, killing, or attempting to do the same migratory birds, their nests, or their eggs. The list of birds protected by United States law goes on and on–three species of cranes, three species of cowbirds, sixteen species of owls, fifty five species of warblers (by my count), etc. etc. etc., for pages and pages, birds that only the most enthusiastic birder would even know existed.  If you want to see the whole list, go to 50 Code of Federal Regulations § 10.13.

Protection for all birds on the list is not absolute.  Some birds on the list are hunted for sport or even food in some rare instances.  The Secretary of the Interior has issued regulations listing some birds that may be pursued, hunted, killed, etc.  Absent a regulatory exemption, the killing, capturing, etc. of birds on the list is prohibited.

Enforcing the Migratory Bird Treaty Act was up to the United States Fish and Wildlife Service, a branch of the United States Department of the Interior.  Historically, the Fish and Wildlife Service has used more of a persuasion approach to enforcement.  It would do things such as send companies notices of the dangers their facilities posed to migratory birds, issue industry guidance, and informally negotiate remediation.  If none of this worked, the Fish and Wildlife Service would pursue fines and enforcement actions against recalcitrant companies.  As a result, prosecutions were rare.  The exceptions were instances such as British Petroleum’s Deepwater Horizon oil spill which killed more than one million birds.  

What happened

            For a century everybody–agencies, the birds, the public, everybody—assumed that the Migratory Bird Treaty Act protected birds from all killing, whether specifically intended or not.  Going out and intentionally killing a bird was, of course, prohibited.  Doing something that killed migratory birds, even when killing the birds was not the specific goal of the activity, was also prohibited.  

             Statutes are not always perfectly clear.  In such a situation, the attorney for the agency often issues an opinion saying what the statute means.  With the Migratory Bird Treaty Act, the top attorney for the Department of the Interior issued an opinion saying that the Act meant what the Fish and Wildlife Service had always said it meant:  the Act prohibits both the purposeful killing of migratory birds and activities which kill birds even if the killing is not the purpose of the activity.  That was in early January, 2017.

            By late 2017 there was a new administration and a new lawyer issuing the opinions.  The new lawyer issued a new opinion which said that the Act only prohibited killing of migratory birds if the killing was the purpose of the activity.  If the birds just happened to get in the way of another activity, that was just their bad luck.  The Act did not protect them.  Under the new interpretation, taking a gun and blazing away at migratory birds would still be illegal.  If an oil company left its waste pit uncovered and migratory birds landed there and died, the Act was irrelevant.

            Several environmental groups cried foul, as did Attorneys General of eight states (not West Virginia).  They filed suit in the District Court for the Southern District of New York.  

            After considering the matter, the Court ruled that the interpretation that the Department of the Interior/Fish and Wildlife Service was using all along was correct.  The Migratory Bird Treaty Act meant what the public, the birds, the Fish and Wildlife Service had historically thought it meant:  birds were protected both from purposeful killing and from killing where bird deaths were not the goal but only a byproduct of some activity.  The Court vacated the contrary interpretation, livening up its opinion with a reference to To Kill a Mockingbird.  Along with the usual legal analysis, mumbo-jumbo etc., the Court said, “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.”

Birds Not Out of the Woods Yet

            While migratory birds can chirp a sigh of relief that they still have the same protections that the Migratory Bird Treaty Act always provided, that is not the end of the story.  The United States Department of the Interior has also proposed a regulation which would adopt the same interpretation of the Act recently vacated by the Court. 

            It is not clear what will happen next.  Regulations enacted by agencies are not supposed to change statutes passed by Congress.  Regulations are only supposed to fill in details that the statute itself did not include.  It would be odd for an agency to proceed with a regulation which offers an entirely different interpretation of the Migratory Bird Treaty Act, an interpretation the judge has just vacated.  

At the same time, the Department of the Interior has not announced that it is withdrawing its proposed regulation.  It has said that “no decisions have been made while we review the ruling, and we do not have a timeline for when the review will be complete. Updates will be posted here when available: https://www.fws.gov/regulations/mbta/”  It also has the opportunity to appeal the decision, an option it still may choose.

Possible Help from Congress

            Congress could eliminate any confusion about what the Migratory Bird Treaty Act means. There is currently pending a bill (H.R. 5552: Migratory Bird Protection Act of 2020) which would make clear that the Act prohibits not just purposeful actions to kill birds.  It would prohibit actions in which the bird deaths result incidentally from other activities which do not have killing birds as their primary goal.  It would, in other words, settle once and for all that the historic interpretation of the Act, the interpretation the Court just gave it, is the right one.            The Bill faces an uphill climb.  Its number of co-sponsors is creeping up (there are now 94, none from West Virginia) but there is still no groundswell of support.  There is no corresponding legislation moving through the Senate.  It was introduced in January, 2020, and has been assigned to a committee but the committee has taken no action.