Ruling reverses attempt to gut the Migratory Bird Treaty Act of 1919
NEW YORK CITY––“It is not only a sin to kill a mockingbird, it is also a crime,” wrote U.S. District Judge Valerie E. Caproni in an August 11, 2020 decision upholding enforcement of the Migratory Bird Treaty Act of 1918 as it has been traditionally enforced.
“That has been the letter of the law for the past century,” Caproni emphasized, striking down one of the most brazen attempts of the Trump administration yet to kill animal and habitat protection laws through executive orders, in this case a series of orders from several different Trump administration appointees.
The Migratory Bird Treaty Act is among the oldest and, before the Donald Trump administration, one of the most effective U.S. laws protecting wildlife and habitat.
Trump administration narrowed enforcement in 2017
The Trump administration has held since December 2017, however, that the Migratory Bird Treaty Act “applies only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control,” in the words of Interior Department principal deputy solicitor Daniel Jorjani.
Jorjani argued that the Migratory Bird Treaty Act of 1918 was intended only to prohibit bird hunting without a license.
The U.S. Fish & Wildlife Service, under a series of Trump appointees, currently former resource extraction industry lobbyist Aurelia Skipwith, has since the Joriani opinion was issued refused to investigate bird deaths caused by resource extraction and fishing industry practices, advised oil and gas companies that they do not have to report bird deaths , and has told local governments and businesses that they need not take steps to protect birds.
On January 20, 2020, the U.S. Fish & Wildlife Service moved to establish the Joriani opinion as a formal rule.
“Trump was not elected to kill birds”
Objected National Audubon Society president David Yarnold, “America did not elect this administration to kill birds.”
Elaborated Audubon magazine associate editor Andy McGlashen, “The century-old Migratory Bird Treaty Act makes it illegal to pursue, hunt, shoot, wound, kill, trap, capture, or collect migratory birds or their eggs or nests—or attempt to do so—without a permit. For the past half-century, the government’s position was that the law prohibited ‘incidental take,’ or the inadvertent but often predictable killing of birds, usually through industrial activities.
“The Fish & Wildlife Service rarely used its authority under the Migratory Bird Treaty Act to punish companies,” McGlashen continued. “There were 14 federal prosecutions for incidental take in the two decades before Jorjani issued his opinion. Even so, the threat of penalties was a powerful incentive for industrial operators to take often simple and relatively inexpensive steps to prevent bird deaths, such as covering oil waste pits to stop waterfowl from landing in them, or spacing electrical wires farther apart than an eagle’s wingspan to avoid electrocutions.”
Trump called enforcement “totalitarian”
Recalled Elizabeth Shogren for Reveal News, “The Nixon administration used the law to reduce the large numbers of golden eagles and other raptors electrocuted by power lines.”
However, Shogren observed, “Some energy companies and other industries considered the Migratory Bird Treaty Act burdensome, and the Fish & Wildlife Service and Justice Department overzealous in prosecuting cases. Nineteen industry groups and companies lobbied the federal government about the law last year.
“President Donald Trump, in a campaign speech in North Dakota in May 2016, said the Obama administration had used ‘totalitarian tactics’ under the Migratory Bird Treaty Act when it prosecuted seven oil companies in the state for killing 28 birds.”
Those 28 birds, however, were cited in court as representatives for thousands of others who were at risk from oil company practices.
Even Deepwater Horizon oil spill could not be prosecuted
Wrote Washington Post environmental reporter Darryl Fears, “In the [Trump] administration’s view, even BP [British Petroleum], the company responsible for the 2010 Deepwater Horizon oil spill in the Gulf of Mexico that led to the deaths of an estimated one million birds, would not be liable for punishment under the Migratory Bird Treaty Act.”
The Joriani opinion even harmed migratory waterfowl almost within sight of Washington D.C., when the Commonwealth of Virginia opted “to pave Hampton Roads’ South Island without creating alternative habitat for the state’s largest waterbird colony,” protested the American Bird Conservancy.
“South Island has been home to a thriving colony of royal terns, Sandwich terns, black skimmers, several species of gull, and gull-billed terns — a species listed as ‘Threatened’ in Virginia — since the 1980s,” an American Bird Conservancy media release detailed. “But the island was paved in late 2019 to stage construction equipment for the multibillion-dollar Hampton Roads Bridge-Tunnel expansion project, which will add additional lanes to alleviate traffic congestion.”
“Cannot require developers to mitigate impacts”
“Bird advocates are not arguing against the much-needed tunnel expansion,” American Bird Conservancy president Mike Parr wrote in a guest column for the Washington Post. “All we want is for the state to build an alternate island with dredge spoil — material that is already widely available nearby.
“Virginia officials have stated that they are unable to build such an island because of bureaucratic hurdles,” Parr recounted, “including the federal government’s weakening of the Migratory Bird Treaty Act. They claim that under the diluted Migratory Bird Treaty Act rules, they cannot require developers to mitigate the impacts of their actions.”
The National Audubon Society, Center for Biological Diversity, and numerous other animal and habitat protection organizations filed lawsuits against the narrowed Trump administration interpretation of the Migratory Bird Treaty Act.
Eight states sued Trump administration
So did then-New York attorney general Barbara Underwood, heading a coalition that also included the state attorney generals of Maryland, New Jersey, Illinois, Massachusetts, Oregon, California and New Mexico.
The lawsuits were joined before Judge Caproni issued her August 11, 2020 ruling, which the Trump administration is expected to appeal.
Meanwhile, wrote Judge Caproni, who was nominated to the federal bench for Southern District of New York in 2012 by then-President Barack Obama, “There is nothing in the text of the Migratory Bird Treaty Act that suggests that in order to fall within its prohibition, activity must be directed specifically at birds. Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only ‘some’ kills are prohibited.”
“Non-native” birds not protected
Migratory Bird Treaty Act enforcement was previously narrowed by Congress in 2004 to remove protection of mute swans, non-migratory Canada geese, and a long list of other birds deemed to be “non-native.”
State wildlife agencies, the National Audubon Society, and the American Bird Conservancy had pursued eradication of mute swans and non-migratory Canada geese for more than 30 years, as purported competition with “native” waterfowl.
Eradication schemes, however, were frequently thwarted by lawsuits brought by animal advocates under provisions of the Migratory Bird Treaty Act.
Carolina parakeet & passenger pigeon
The Migratory Bird Treaty Act was passed by Congress soon after the last Carolina parakeet, named Incas, died at the Cincinnati Zoo & Biological Park on February 21, 1918.
Incas’ mate, Lady Jane, had died about a year earlier. Their deaths followed by four years the death of Martha, the last passenger pigeon, on September 1, 1914.
Martha, Incas, and Lady Jane were frequently looked after by teenaged zoo volunteer Richard Olsen, who often brought his younger brother Humphrey Olsen, 1909-1991, with him to help with light chores.
The Olsen brothers together founded a mimeographed magazine called Bird World in 1922, when Humphrey was 13, which Humphrey edited almost until his death.
Snowy Egret & “cultural aspects of natural history”
Humphrey Olsen changed the name of the magazine to Snowy Egret in 1924, shifting the focus in 1951 from bird observations to what Humphrey called “the cultural aspects of natural history.”
Though Snowy Egret under Olsen never distributed more than about 1,000 copies, it built support for strict Migratory Bird Treaty Act enforcement during the Great Depression by accurately noting the loss of native birds from the midwest, not only from excessive hunting and trapping, but also due to habitat loss.
“Sure we can complete the 100th year”
Despite the small scale and modest distribution of Snowy Egret, it was an early vehicle for many people who went on to long involvement in animal and habitat protection, including the authors Edward Abbey and Barry Commoner, and ANIMALS 24-7 editor Merritt Clifton.
Snowy Egret continued after Olson’s death under Indiana State University art professor Karl Barneby as a hand-lithographed magazine of nature art.
“We are sure that we can continue through 2021 and complete the 100th year,” volunteer staff member Judy Dukes posted to Facebook on August 13, 2019, “but given that the average age of the editorial board is probably 80, we don’t plan to go beyond that.
“In order to continue,” Dukes said, “the magazine needs younger people who would take over publication. In my opinion, and it’s only my opinion, they aren’t out there.”
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