Law protects birds from poaching but not oil spills, says Trump administration

U.S. Fish & Wildlife Service makes “permanent” abdication of Migratory Bird Treaty Act enforcement against “accidental” bird kills

WASHINGTON D.C.––The U.S. Fish & Wildlife Service on November 27,  2020 published a Final Environmental Impact Statement on amendments to the 1918 Migratory Bird Treaty Act enforcement rules which will allow businesses,  in the mineral extraction industries in particular,  to kill many more birds with much less accountability than the estimated annual toll from human hunters,  roadkills,  and feral cats combined.

If U.S. President Donald Trump and U.S. Fish & Wildlife Service director Aurelia Skipwith were feral cats,  instead of lame ducks just 50 days from leaving office,  there is little doubt what fate the American Bird Conservancy,  National Audubon Society,  and other bird advocacy organizations would recommend for them.

Law affects birds in Canada,  Mexico,  Japan & Russia,  too

Instead,  Trump and Skipwith are on January 20,  2021 likely to skip off to other lucrative yet ecologically destructive pursuits,  while multi-billion-dollar corporations are free to allow birds to die in oil spills at sea,  oil field sump pits,  natural gas vent stacks,  and in countless other completely predictable ways,  simply because the deaths are “unintentional” consequences of the industrial activity.

The 1918 Migratory Bird Treaty Act “regulates the ‘taking’ of migratory birds,  which includes ‘to pursue,  hunt,  shoot,  wound,  kill,  trap,  capture,  collect,  or attempt to hunt,  shoot,  wound,  kill,  trap,  capture,  or collect” any of about 800 migratory bird species,”  explained Celine Castronuovo of The Hill.

The law implements a 1916 conservation treaty with Canada and similar agreements signed with Mexico in 1936,  Japan in 1972,  and Russia in 1976.

450 million to 1.1 billion birds per year

Recent Fish & Wildlife Service and U.S. Department of Agriculture reports estimate that U.S.  industrial operations kill from 450 million to 1.1 billion birds annually,  from a national bird population of about seven billion birds in North America.

The Fish & Wildlife Service,  in the newly published Final Environmental Impact Statement on the Migratory Bird Treaty Act enforcement policy change,  “acknowledged that the regulatory change will have ‘negative’ impacts on migratory birds,  as well as ‘other biological resources,’  ‘cultural resources’ and ‘ecosystem services,’”  Castronuovo wrote,  as one of the first journalists to see the document.

Consistent with Trump administration practice,  the Final Environmental Impact Statement was released late on a Friday,  to minimize media notice.  Previous administrations have used the same strategy,  but never before so routinely.

Act was introduced to fight poaching

The Fish & Wildlife Service claimed,  Castronuovo continued,  “that the proposed change ‘is necessary to improve consistency and efficiency in enforcement of the Migratory Bird Treaty Act’s prohibitions across the country and inform the public,  businesses,  government agencies,  and other entities what is and is not prohibited.”

The 1918 Migratory Bird Treaty Act was originally adopted,  as the Fish & Wildlife Service argues in rolling back the enforcement regulations,  to address market hunting,  especially for plumage.

Feathers from wild birds had then long been commonly used to decorate women’s hats,  in particular.  Feather-hunting was blamed for the extinction of the Carolina parakeet and the ivory-billed woodpecker,  and for the decline to the brink of extinction of the snowy egret,  wood duck,  and sandhill crane,  among other species which have since been recovered.

Market hunting,  including mass netting for use in shooting contests,  was also blamed for the extinction of the passenger pigeon.

But was almost immediately used to protect habitat,  as well

Therefore,  the Fish & Wildlife Service contends,  the 1918 Migratory Bird Treaty Act was intended to address only deliberate acts,  specifically poaching.

Against that interpretation is the reality that almost from inception the 1918 Migratory Bird Treaty Act has also been used to protect nesting habitat and to prohibit industrial actions which wantonly and predictably jeopardize birds.

Slightly more than a century of enforcement history suggests that “the public,  businesses,  government agencies,  and other entities” should no longer be in any doubt about “what is and is not prohibited.”

But this is a very different matter from industries being willing to pay penalties that cut significantly into profits realized,  in part,  by neglecting environmental safety measures.

Fines small compared to damage

The Migratory Bird Treaty Act was invoked to oblige ExxonMobil to pay $125 million in criminal penalties after the 1989 Exxon Valdez oil spill in Alaska,  a mere fraction of the estimated $7 billion cost of the multi-decade clean-up effort.  The spill on Bligh Reef in Prince William Sound killed 2,800 sea otters,  300 harbor seals,  900 bald eagles,  1,000 harlequin ducks,  and about 250,000 seabirds of other species within a matter of days.

The Migratory Bird Treaty Act also cost BP [formerly British Petroleum] fines of $100 million following the 2010 Deepwater Horizon oil drilling rig explosion,  fire,  and spill into the Gulf of Mexico. The Deepwater Horizon disaster killed an estimated 100,000 sea birds.

The clean-up cost BP about $4 billion,  plus about as much more in other fines and penalties.

Trump gunned for Migratory Bird Treaty Act enforcement since inauguration

The Trump administration began undoing the authority of the Migratory Bird Treaty Act to hold the mineral extraction industry responsible for such calamities soon after taking office in 2017.

According to a December 2017 Trump administration directive called the M-Opinion,  issued by Interior Department principal deputy solicitor Daniel Jorjani,  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.”

Elaborated Fish & Wildlife Service principal deputy director Margaret Everson,  to U.S. Senator Chris Van Hollen (D-Maryland),   “If an oil or hazardous chemical release occurs and is not done with the intent of taking migratory birds,  the Migratory Bird Treaty Act does not apply,”  no matter how much harm to migratory birds may follow.

What to do with dead birds collected as evidence?

Reveal writer Elizabeth Shogren in April 2019 recited some of the consequences of the altered interpretation of the Migratory Bird Treaty Act.

“After a pipeline burst in Idaho last April,  spilling diesel into a pond and wetland,  two coolers full of dead birds were dropped off at the Fish & Wildlife office in Boise,”  Shogren recounted.  “In an email about what to do with the dead birds,  a Fish & Wildlife agent wrote that ‘we are no longer involved’ when birds are killed in oil spills.

“Agents had a similar reaction when a tugboat spilled oil into Great Harbor in Woods Hole,  Massachusetts,  killing dozens of birds.

No protection for eggs & chicks

“An email about a timber harvest in Michigan said Fish & Wildlife no longer prohibits loggers from cutting down trees with nests in them,  even if it destroys live eggs or chicks,”  an interpretation directly contrary to the language of the Migratory Bird Treaty Act itself.

“Another email from October 2018,”  Shogren continued,  “shows that Fish & Wildlife saved $2.5 million by not filling 10 positions primarily related to investigating violations of the Migratory Bird Treaty Act. The agency refused to discuss the specific examples or staffing decisions.”

Shogren obtained “the heavily redacted emails,”  she wrote,  from the Natural Resources Defense Council,  which “had to sue to get them,  after the Interior Department failed to respond to a public records request.”

Directive author was oil industry lawyer

Jorjani,  whose 2017 directive first took the ax to the Migratory Bird Treat Act,  is a former legal advisor to Koch Industries.

“According to the University of Massachusetts Amherst’s Political Economy Research Institute,”  wrote Tim Dickinson for Rolling Stone in September 2014,  Koch Industries “ranks 13th in the nation for toxic air pollution.  Koch’s climate pollution,  meanwhile, outpaces oil giants including Valero,  Chevron and Shell. Across its businesses,  Koch generates 24 million metric tons of greenhouse gases a year.”

Jorjani “opened the floodgates to bird killing by the oil and gas industry and other campaign contributors of the Trump administration,”  opined Center for Biological Diversity government affairs director Brett Hartl in 2019 to Brett Wilkins of Common Dreams.

On January 20,  2020,  exactly one year before Trump and Skipwith are both expected to depart their offices,  the Fish & Wildlife Service moved to establish the Joriani opinion as a formal rule.

Skipwith was industry lobbyist

Skipwith,  the first person of African-American ancestry to head the Fish & Wildlife Service,  in her position since September 2019,  is also longtime consort of prominent resource extraction industry lobbyist Leo Giacometto and is herself a former lobbyist against Endangered Species Act enforcement.

U.S. District Judge Valerie E. Caproni,  of the Southern District of New York,  on August 11,  2020 upheld the historical sweep of enforcement of the Migratory Bird Treaty Act.

“It is not only a sin to kill a mockingbird,  it is also a crime,” wrote Caproni.  “That has been the letter of the law for the past century,”  Caproni emphasized.

The Jorjani/Skipwith interpretation,  Caprioni found,  “runs counter to the purpose of the Migratory Bird Treaty Act to protect migratory bird populations” and “is simply an unpersuasive interpretation of the Migratory Bird Treaty Act’s unambiguous prohibition on killing protected birds.”

(See “To kill a mocking bird is a crime,” judge reminds Trump administration.)

“Attempt to jam through interpretation that a federal court has already declared illegal”

“There was never a good reason to weaken the Migratory Bird Treaty Act and the administration should have taken the loss in court as an opportunity to abandon its bird-killing policy,”  said National Audubon Society chief conservation officer Sarah Greenberger.

But Skipwith reiterated her commitment to “making sure we’re not criminalizing unintentional actions,”  no matter how many migratory birds are killed through acts of negligent avicide.

The November 27,  2020 Final Environmental Impact Statement on the amended 1918 Migratory Bird Treaty Act enforcement rules are an attempt “by the U.S. Fish & Wildlife Service to jam through a rule to cement an interpretation of the Migratory Bird Treaty Act that a federal court has already declared illegal,”  responded Defenders of Wildlife president Jamie Rappaport Clark.

“At a time when North America has already lost three billion birds,”  Clark said,  the amendments “will further undercut our nation’s ability to conserve birds so many people care about deeply.”

“In a frenzy to finalize bird-killer policy”

Explained Wilkins,  “Rappaport Clark was referring to a 2019 study published in the peer-reviewed journal Science that found since 1970 the continent has lost over 2.9 billion birds, or nearly 30% of its avian population.”

(See Who killed 2.9 billion birds since 1970? Not cats, says a look through the glass!)

National Audubon Society president David Yarnold,  alleging that Trump is “in a frenzy to finalize his bird-killer policy,”  emphasized that “Reinstating this 100-year-old bedrock law must be a top conservation priority for the Joe Biden-Kamala Harris administration,”  and for 117th Congress,  as soon as they take office.

Trump administration earlier expanded bird hunting

Skipwith and Interior Secretary David Bernhardt previously demonstrated indifference toward the health of migratory bird species on April 8,  2020,  by expanding hunting and fishing access on 2.3 million acres at 97 National Wildlife Refuges plus nine fish hatcheries,  beginning during the 2020-2021 hunting season.

Most of the expanded access involved opportunities to shoot migratory birds,  especially waterfowl.

The time frame coincided with the run-up to the November 3,  2020 U.S. general election.

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