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Late Friday afternoon, just before the long Christmas weekend, the (*&%(%( Administration dumped a lump of coal on the birds protected under the Migratory Bird Act when it released a 41-page opinion from the Office of the Solicitor of the Department of the Interior declaring that "consistent with the text, history, and purpose of the MBTA, the statute's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs."
This statement (attached), written by Koch alumnus Daniel Jorjani, who was appointed principal deputy solicitor in May 2017, reverses a solicitor's opinion issued on 10 January 2017 (the last gasp of the Obama administration) that concluded just the opposite - that the MBTA's prohibitions on taking and killing migratory birds apply broadly to any activity, subject to the limits of proximate causation, and are not limited to certain factual contexts. Therefore, these prohibitions can and do apply to direct incidental take."
In recent years, numerous industries have been charged with violations of the Migratory Bird Treaty Act (MBTA) when their otherwise lawful activities resulted in the deaths of bird species protected under that law. Telecommunications companies, power transmission companies, wind energy producers, and others paid fines, despite the fact that the law is unsettled as to whether the MBTA applies to what is called "incidental take." The MBTA is silent on the issue, as might be expected of a law enacted in 1918 and motivated both by the slaughter of birds for the millinery trade and the unrestricted hunting of game birds. No one thought about the deaths of birds that might result from otherwise lawful activities.
And until the 1990s, no one thought to try to hold industries liable for incidental take under the MBTA. A series of federal court cases brought by NGOs and later, the U.S. Fish and Wildlife Service, arose out of concern about the impact of activities such as logging, electricity transmission, oil and other chemical waste pits, telecommunications towers, and wind turbines. In 1997, a conservation organization tried to stop timber sales because the logging would result in the deaths of migratory birds. The court rejected that argument. In other cases, however, the court held that the MBTA is a strict liability statute (meaning that intent is irrelevant) and that if the industries had been given adequate notice that the deaths were occurring as a result of their actions, they were then legally responsible for subsequent bird kills. At this point, three federal appellate courts have ruled that the MBTA does not cover incidental take and two federal appellate courts have ruled that the law applies to any activity that has the direct effect of killing or injuring a migratory bird. Only the Supreme Court can resolve this "split among the circuits" and only the most fool-hardy NGO would dare risk taking a case to this Supreme Court. In fact, there is also considerable legal uncertainty about whether "private citizen" lawsuits are allowable under the MBTA.
The uncertainty allowed the USFWS to entice industries to enter into discussions about mitigating or reducing avian mortality, with the proposition that if the industries developed practices to reduce mortality, they would not face prosecution so long as they implemented their own practices. It was a flabby carrot and a small stick, but the potential for prosecution and an adverse outcome was sufficient for some industries. This strategy worked fairly well with the electricity transmission industry, which worked with the USFWS under the Avian Power Line Interaction Committee.
That model did not work so well with the telecommunications industry or with wind turbine development. Eventually, near the close of the Obama administration, the USFWS attempted to develop a comprehensive policy pertaining to incidental take, despite the legal uncertainty. That effort, which almost certainly would have resulted in litigation, was initiated far too late in the second term to have had any hope of completion and, even if completed, would almost certainly have been reversed by the current administration. Ultimately, the effort resulted in that last-minute opinion from the solicitor which was destined to be ignored, if not overturned entirely by the (P8(*^(^^ Administration.
And so it has come to pass that there is now a formal, written policy that has no more legal basis than its predecessor, all to make official something that was NEVER going to happen anyway. This (*&)(*&)( was NEVER going to prosecute any industry for even the most egregious conduct resulting in the take of migratory birds.