Gutting the Migratory Bird Act

The snowy winter has proven to have a silver lining this spring if you’re a birder. Areas that are normally dry are flooded. Wetlands that have been suffering the past few years are now full.

It’s resulted in a spring bird migration in the Flathead Valley that hasn’t been seen in several years. Big flocks of pintail ducks and wigeons in particular are pretty common sights these days. Select fields and wetlands are hosting tundra swans and Monday night there was even a sizable flock of snow geese feeding in a flooded hay field south of town.

Snow geese most famously migrate by the hundreds of thousands east of the divide, particularly at Freezout Lake near Choteau. In the Flathead Valley? Not so much.

But imagine one of the many low spots these waterfowl have been landing in was a waste oil pit. In the past, the owner of the pit, if it wasn’t covered with netting to keep birds out, could have faced fines under the Migratory Bird Act.

The Act makes it “unlawful to pursue, hunt, take, capture, kill, possess, sell, purchase, barter, import, export, or transport any migratory bird, or any part, nest, or egg or any such bird, unless authorized under a permit issued by the Secretary of the Interior.”

The Migratory Bird Act was passed 100 years ago. For 40 years now, the law has interpreted “take” to mean killing migratory birds, intent or not. In other words, when the Deepwater Horizon oil well exploded and spewed oil into the Gulf of Mexico, killing an estimated 1 million birds, British Petroleum was held liable.

But no more.

The Trump Administration has reinterpreted the law, likely to the detriment of birds.

According to a Washington Post article, in the new opinion, the Department of Interior’s principal deputy solicitor, Daniel Jorjani, wrote that applying the law “to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 fine for each and every bird injured or killed.”

Before joining the Trump administration, Jorjani worked as general counsel for Freedom Partners Chamber of Commerce, a project of the billionaire oil executives Charles G. and David H. Koch.

Surprise, surprise. Right?

Then last week it got a little worse.

The Post reported again that “an opinion issued Wednesday to federal wildlife police who enforce the rule, the Interior Department said “the take [killing] of birds resulting from an activity is not prohibited by the Migratory Bird Treaty Act when the underlying purpose of that activity is not to take birds.” For example, the guidance said, a person who destroys a structure such as a barn knowing that it is full of baby owls in nests is not liable for killing them. “All that is relevant is that the landowner undertook an action that did not have the killing of barn owls as its purpose,” the opinion said.

In addition, the Post story noted. “After an oil spill, Interior would pursue penalties under the Natural Resources Damage Assessment program that is not specific to birds. In the past, ‘the department has pursued MBTA claims against companies responsible for oil spills that incidentally killed or injured migratory birds. That avenue is no longer available.’”

In other words, pollute as much as you want, without fear of retribution.

Critics in the energy, and some in the legal world, claim the Migratory Bird Act is ambiguous on the definition of “take.”

In my view, it seems rather clear. The Act has served migratory birds well for 100 years not just in the U.S., but in cooperating nations as well.

This interpretation abandons its very tenets.

Chris Peterson is the editor of the Hungry Horse News.