By: Cameron Franey

The Department of the Interior (DOI) is changing its approach to the Migratory Bird Treaty Act (MBTA), opting to prioritize industries over the lives of migratory birds.[i] This 1918 Act protects migratory birds from killings, historically including protections for both unintentional as well as intentional killings.[ii] Now, however, the DOI plans to only prosecute intentional killings, easing pressure on industries that have had to modify their business practices in order to avoid unintentionally killing migratory birds and face penalties for violating the MBTA.[iii]

Critics of this change include former Republican and Democratic DOI officials dating back to the Nixon Administration.[iv] These critics claim it’s a loophole for industries to kill protected birds, about a thousand in total, without consequence so long as their intention is not killing.[v] Proponents of the change argue that the MBTA was created to protect against poaching and hunting, rather than prosecuting industries unintentionally killing protected birds.[vi]

https://www.flickr.com/photos/danishwindindustryassociation/4136599974

Despite the intent of those that drafted the original MBTA, the MBTA clearly covers both intentional and unintentional killings. The MBTA’s opening statement makes it “unlawful at any time, by any means or in any manner to… kill… any migratory bird….”[vii] The statutory construction forecloses any scienter requirement, opting instead for strict liability for any killing of a protected bird. While industries may receive a respite from prosecution by the Trump Administration, the MBTA is still a tool that can be used to punish them for their actions, intentional or not.

Affected industries, like wind energy, communications, and air transportation, that have cooperated with federal authorities in the past under the threat of prosecution, should continue to fear prosecution going forward.[viii] Future administrations should seriously consider returning to the tradition of interpreting the MBTA to protect from unintentional killings. Profits and ease of business are not good enough reasons to risk the lives of thousands of types of birds.

[i] Laura Zuckerman, Accidentally Killing Migratory Birds Not a Crime, Trump Administration Says, Reuters (Dec. 17, 2017, 10:25 PM), https://www.reuters.com/article/us-usa-environment-trump/accidentally-killing-migratory-birds-not-a-crime-trump-administration-says-idUSKBN1EH03D.

[ii] Migratory Bird Treaty, 16 U.S.C.A. § 703(a) (West 2004); Juan Carlos Rodriguez, 4 Takeaways From DOI’s About-Face On Migratory Bird Kills, Law360 (Jan. 26, 2018), https://www.law360.com/environmental/articles/1005315/4-takeaways-from-doi-s-about-face-on-migratory-bird-kills?nl_pk=e6d02bca-3b13-47d5-bd1a-38a01add5c7f&utm_source=newsletter&utm_medium=email&utm_campaign=environmental&read_more=1.

[iii] Rodriguez, supra note ii.

[iv] Timothy Cama, Former Interior Officials Criticize Trump Admin Policy on Bird Killings, The Hill (Jan. 12, 2018, 10:53 AM), http://thehill.com/policy/energy-environment/368709-former-interior-officials-criticize-trump-admin-policy-on-bird.

[v] Id.

[vi] Zuckerman, supra note i.

[vii] 16 U.S.C.A. § 703(a).

[viii] Elizabeth Shogren, Trump Made it Easier for Oil Companies to Get Away with Killing Migratory Birds, Mother Jones (Jan. 29, 2018, 6:00 AM), https://www.motherjones.com/environment/2018/01/trump-made-it-easier-for-oil-companies-to-get-away-with-killing-migratory-birds/.