Court Overturns Administration Efforts to Weaken the Migratory Bird Treaty Act

Industry polluters once again on the hook for killing birds

Media Contact: Jordan Rutter, Director of Public Relations, 202-888-7472 | jerutter@abcbirds.org | @JERutter
Expert Contact: Steve Holmer, Vice President of Policy, 202-888-7490 | sholmer@abcbirds.org

Ruby-throated Hummingbird

Migratory birds, including the Ruby-throated Hummingbird (shown) had their day in court and won. A federal judge overturned an Administration reinterpretation of the Migratory Bird Treaty Act that let industry off the hook for killing birds. Photo by Glenn Woodell, Shutterstock

(Washington, D.C., August 11, 2020) A federal court today overturned an Administration reinterpretation of the Migratory Bird Treaty Act (MBTA) that had upended decades of enforcement and let industry polluters off the hook for killing birds.

The Administration had argued that the law only applied to the intentional killing of birds and not “incidental” killing from industrial activities that kill millions of birds every year, such as oil spills and electrocutions on power lines. This reinterpretation was first put in place in December 2017 through a legal opinion authored by the Solicitor of the Department of the Interior and former Koch Industries employee, Daniel Jorjani. This opinion was already allowing birds to be killed across the country.

Citing “To Kill a Mockingbird,” U.S. District Court Judge Valerie Caproni wrote that “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.”

In rejecting the Jorjani opinion, the court noted that the MBTA makes it unlawful to kill birds “by any means whatever or in any manner” — thus the Administration's interpretation could not be squared with the plain language of the statute.

Had the Administration's policy been in place at the time of the Deepwater Horizon oil spill in 2010, for example, British Petroleum would have avoided paying more than $100 million in fines to support wetland and migratory bird conservation to compensate for more than a million birds estimated killed by the accident.

The Administration policy was put in place over objections from Canada, a co-signer of the migratory bird treaty that had led to the law. Scientists now estimate North American birds have declined by 29% overall since 1970, amounting to roughly 3 billion fewer birds.

Since the Jorjani opinion, Snowy Owls and other raptors have been electrocuted by perching on uninsulated power lines in Delaware, Maryland, Tennessee, and North Dakota – with no consequences for the responsible utilities. Oil spills in Massachusetts, Idaho, and Washington, all of which caused the subsequent deaths of many birds, did not prompt any penalties. Landscapers in San Diego were reported to have thrown live Mourning Dove chicks into a tree shredder, prompting a U.S. Fish and Wildlife Services agent to go undercover to investigate. But the case was closed with no action taken due to the changed policy.

“The Trump Administration's policy was nothing more than a cruel, bird-killing gift to polluters and we're elated it has been vacated,” said Noah Greenwald, Endangered Species Director at the Center for Biological Diversity.“ Birds are in real trouble across the United States. We must do everything we can to ensure they continue to brighten our skies and sing to us in the morning, for which they ask nothing in return.”

“Today's commonsense ruling is a much-needed win for migratory birds and the millions of Americans who cherish them,” said Mike Parr, President of American Bird Conservancy. “The Migratory Bird Treaty Act is one of our nation's most important environmental laws and has spurred industry innovation to protect birds, such as screening off toxic waste pits and marking power lines to reduce collisions. This decision represents the next vital step on the path to restoring our nation's declining bird populations and is a major victory for birds and the environment.”

“The court's decision is a ringing victory for conservationists who have fought to sustain the historical interpretation of the Migratory Bird Treaty Act to protect migratory birds from industrial harms,” said Jamie Rappaport Clark, President and CEO of Defenders of Wildlife. “The Department of the Interior's wrong-head reinterpretation would have left the fate of more than 1,000 species of birds in the hands of industry. At a time when our nation's migratory birds are under escalating threats, we should be creating a reasonable permit program to ensure effective conservation and compliance, rather than stripping needed protections for birds.”

“This decision confirms that Interior's utter failure to uphold the conservation mandate of the U.S. Fish and Wildlife Service simply cannot stand up in a court of law,” said Katie Umekubo, Senior Attorney at NRDC (Natural Resources Defense Council). “The MBTA protects millions of birds and the Trump administration's reckless efforts to rollback bird protections to benefit polluters don't fool anyone.”

“Like the clear crisp notes of the Wood Thrush, today's court decision cuts through all the noise and confusion to unequivocally uphold the most effective bird conservation law on the books — the Migratory Bird Treaty Act,” said Sarah Greenberger, Interim Chief Conservation Officer for the National Audubon Society. “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.”

“Migratory birds are once again protected in the United States from industrial and other threats, thanks to a court ruling rejecting the Administration's blatant misinterpretation of protections Congress put in the Migratory Bird Treaty Act,” said Mike Leahy, Director of Wildlife, Hunting and Fishing Policy at the National Wildlife Federation. “Common-sense measures to protect birds like the Snowy Egret, Wood Duck, and Sandhill Crane have been restored, and bird advocates, affected industries, and Congress can now focus on developing a permit program to reduce harms to birds and impacts to businesses through best management practices.”

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Media Contacts:
Jordan Rutter, American Bird Conservancy, (202) 888-7472, jerutter@abcbirds.org
Noah Greenwald, Center for Biological Diversity, (503) 484-7495, ngreenwald@biologicaldiversity.org
Gwen Dobbs, Defenders of Wildlife, (202) 772-0269, gdobbs@defenders.org
Matt Smelser, National Audubon Society, (512) 739-9635 matt.smelser@audubon.org
Kari Birdseye, Natural Resources Defense Council, (415) 350-7562, kbirdseye@nrdc.org

About the partner organizations:

American Bird Conservancy is a nonprofit organization dedicated to conserving birds and their habitats throughout the Americas. With an emphasis on achieving results and working in partnership, we take on the greatest problems facing birds today, innovating and building on rapid advancements in science to halt extinctions, protect habitats, eliminate threats, and build capacity for bird conservation. Find us on abcbirds.org, Facebook, Instagram, and Twitter (@ABCbirds).

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.7 million members and online activists dedicated to the protection of endangered species and wild places.

Defenders of Wildlife is dedicated to the protection of all native animals and plants in their natural communities. With over 1.8 million members and activists, Defenders of Wildlife is a leading advocate for innovative solutions to safeguard our wildlife heritage for generations to come. For more information, visit Defenders.org/newsroom and follow us on Twitter @Defenders.

The National Audubon Society protects birds and the places they need, today and tomorrow. Audubon works throughout the Americas using science, advocacy, education, and on-the-ground conservation. State programs, nature centers, chapters, and partners give Audubon an unparalleled wingspan that reaches millions of people each year to inform, inspire, and unite diverse communities in conservation action. A nonprofit conservation organization since 1905, Audubon believes in a world in which people and wildlife thrive. Learn more at www.audubon.org and on Facebook, Twitter and Instagram @audubonsociety.

The Natural Resources Defense Council (NRDC) is an international nonprofit environmental organization with more than 3 million members and online activists. Since 1970, our lawyers, scientists, and other environmental specialists have worked to protect the world's natural resources, public health, and the environment. NRDC has offices in New York City, Washington, D.C., Los Angeles, San Francisco, Chicago, Bozeman, MT, and Beijing. Visit us at www.nrdc.org and follow us on Twitter @NRDC.​

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