U.S. NEWS

Judge Reverses Trump Administration's Removal Of Migratory Bird Protections

A 2017 legal opinion protected energy companies and other parties from being prosecuted for unintentionally killing migratory bird species.
A heavily oiled bird from the waters of Barataria Bay, Louisiana, in June 2010. The Trump administration in 2017 ended crimin
A heavily oiled bird from the waters of Barataria Bay, Louisiana, in June 2010. The Trump administration in 2017 ended criminal penalties imposed under the Migratory Bird Treaty Act to pressure companies into taking measures to prevent unintentional bird deaths.

A federal judge has reversed the Trump administration’s 2017 rollback of the Migratory Bird Treaty Act (MBTA) that allowed for the killing of migratory birds by corporations and individuals so long as the deaths could not be proven as intentional.

The New York judge, quoting Harper Lee’s “To Kill a Mockingbird” in her ruling Tuesday, excoriated the administration’s interpretation of the 1918 federal wildlife law, stating that it “runs counter to the purpose of the MBTA to protect migratory bird populations.”

“It is not only a sin to kill a mockingbird, it is also a crime,” Justice Valerie Caproni, quoting the Pulitzer Prize-winning novel, stated in her ruling. “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.”

A pair of snow geese land among others on a farm field at their winter grounds near Conway, Washington, in 2019. More than 50
A pair of snow geese land among others on a farm field at their winter grounds near Conway, Washington, in 2019. More than 50,000 of the birds flock annually to the valley, after migrating from the Arctic tundra.

Under the Trump administration’s controversial 2017 legal opinion, deaths of migratory birds by such things as oil spills, uncovered oil pits and liquid waste tanks, and uninsulated power lines had been excused from legal repercussions. The U.S. Fish and Wildlife Service, which administers and enforces the MBTA, estimates that these human-caused threats result in tens of millions of bird deaths each year. The BP Deepwater Horizon oil well disaster in 2010, on its own, is estimated to have killed 1 million birds.

Daniel Jorjani, a former Koch brothers adviser who wrote the Interior Department’s legal opinion as principal deputy solicitor in December 2017, argued that the 100-year-old law only prohibits the intentional hunting, capturing or killing of bird species. “Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions,” he wrote. His opinion replaced one from the Obama administration 11 months earlier that concluded the law did apply to incidental wounding, killing or trapping of birds.

The Trump rule change broke from decades of legal precedent and prompted a number of lawsuits by environmental groups ― including the Natural Resources Defense Council and the National Audubon Society ― as well as several states.

“This is a huge victory for birds and it comes at a critical time — science tells us that we’ve lost 3 billion birds in less than a human lifetime and that two-thirds of North American birds are at risk of extinction due to climate change,” Sarah Greenberger, interim chief conservation officer for the National Audubon Society, said in a statement.

Under the Trump administration’s change of the MBTA, the deaths of migratory birds by such things as oil spills, uncove
Under the Trump administration’s change of the MBTA, the deaths of migratory birds by such things as oil spills, uncovered oil pits and liquid waste tanks, and uninsulated power lines had been excused from legal repercussions. 

In her ruling Tuesday, Caproni argued that the Trump administration’s MBTA guidance to the law went beyond excusing lawful accidents and was “contrary to the plain meaning of the MBTA.”

“Killing a bird by firing a gun, setting a trap, dumping oil waste, or pressure washing nests from a bridge all fit within Interior’s active sense of ‘kill,’ and yet the Jorjani Opinion concludes that the first two are prohibited by the MBTA while the latter two are not,” she wrote.

The rollback, which federal wildlife officials have now treated as the established rule for more than two years, has had far-reaching effects. As HuffPost previously reported, the law enforcement arm of the U.S. Fish and Wildlife Service largely abandoned investigating migratory bird deaths, opening the the door for gross negligence by polluting industries and the general public. 

In January, the administration introduced a rule to make the changes permanent, and it remains to be seen how Tuesday’s ruling will affect that process. A draft environmental impact statement released in June made clear that the rule would result in more bird deaths and fewer entities implementing best practices to avoid killing feathered species. 

The Interior Department and Fish and Wildlife Service did not respond to HuffPost’s questions Wednesday about how the court decision would impact future enforcement or if the agency still plans to move forward with a final rule to permanently slash protections for hundreds of species of migratory birds. Instead, Interior spokesman Connor Swanson sent a general statement arguing that the court opinion “undermines a common sense interpretation of the law and runs contrary to recent efforts, shared across the political spectrum, to de-criminalize unintentional conduct.”

Erik Schneider, a policy analyst at Audubon, told HuffPost on Wednesday that Interior has failed to carry out the law for more than two years and should immediately reverse course. 

The judge’s ruling “made it pretty clear that this radical interpretation of the Migratory Bird Treaty Act is not going to fly in the courts,” he said. “Any attempt to try to codify it will result in further legal losses.” 

CLARIFICATION: This article originally stated that the Trump administration amended MBTA. Rather, it issued a legal opinion that legalized all unintentional migratory bird deaths. A judge overturned that interpretation on Tuesday.