Migratory Birds vs. the Trump Administration: This Time the Birds Win

August 21, 2020 | 8:50 am
Maria Caffrey
Former Contributor

The Department of the Interior (DOI) was dealt a serious blow earlier this month in its attempt to dismantle one of our most vital laws for protecting wildlife, the Migratory Bird Treaty Act (MBTA). A federal judge ruled that attempts by the agency to reinterpret the MBTA to allow more bird deaths were unlawful, lacked any opportunity for public comment, and showed that “agency expertise is questionable at best.”

This is excellent news as Interior’s approach threatened the lives of millions of birds. To date, three separate lawsuits had been filed from six environmental groups and eight states arguing that the agency’s opinion that the “incidental” killing of migratory birds was not DOI’s responsibility was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

As I wrote in January— “When It’s Migratory Birds vs. the Trump Administration, the Birds Die”–the DOI has been working for some time to reinterpret the 1918 act to allow industry to kill many more birds without any fear of punishment, fines, or other reprisals.

To date the agency had issued a solicitor’s opinion that revised previous readings of the century-old law to allow the “incidental” killing of migratory birds and basically give a free pass to industry for killing migratory birds as long as industry’s activities did not deliberately target them.

As part of that, Interior argued that the Fish and Wildlife Service, which administers and enforces the MBTA, no longer needed to investigate any bird deaths—many of which could be prevented using simple mitigation measures. This was essentially a gift to industries where incidental kills frequently occur, particularly deaths related to collisions, entrapment, entanglement, and drowning (e.g. oil pits, power-lines, evaporation ponds, oil spills, commercial fishing lines, and wind turbines).

This new ruling stops these efforts for now and is a significant triumph for environmental and wildlife defenders, but it also made headlines because of Judge Valerie Caproni’s clever opening line that paraphrased a quote from Harper Lee’s To Kill A Mockingbird. Judge Caproni said that “it is not only a sin to kill a mockingbird, it is also a crime.”

I think this is a timely reminder that while it may seem that our federal government is an overarching force that in many cases gets the final say, it is always worth calling out and fighting whenever we see injustice. This isn’t just a victory for the migratory birds, this is a victory for us all.