Federal Judge Rules Audubon Lawsuit Against Trump Administration May Proceed

Lawsuit seeks to defend the Migratory Bird Treaty Act from Trump Administration efforts to hand industry a blank check for bird deaths.

NEW YORK (July 31, 2019) A federal judge has ruled that a lawsuit may proceed that was brought by the National Audubon Society and other conservation groups seeking to block the Trump Administration from stripping vital protections for migratory birds.

“If the White House expected to gut the most important bird protection law without a fight, then they severely underestimated the guts of the National Audubon Society,” said David Yarnold (@david_yarnold), president and CEO of National Audubon Society.   

Audubon, partner organizations, California and several other states filed Audubon v. Department of the Interior  in May 2018 challenging an opinion by the Department of the Interior’s Solicitor’s Office saying it will no longer enforce the MBTA in cases of incidental bird deaths, effectively giving a blank check to industry to avoid gruesome and preventable bird deaths. Eight states filed a similar suit in September 2018. The opinion undermines the Migratory Bird Treaty Act's (MBTA) prohibition on the killing or "taking" of migratory birds, which has long been understood to include the “incidental” take of birds from industrial activities like birds flying into uncovered oil pits or other predictable and avoidable killing.

California officials have taken several steps to block the impact of the Trump Administration reversal. In May of last year, California joined seven other states in a lawsuit challenging the DOI memorandum, followed in November by guidance from California Attorney General Xavier Becerra and the state Department of Fish & Wildlife, stating that incidental take remained illegal in California regardless of federal policy.   AB 454, a bill by San Jose Assemblymember Ash Kalra (D-San Jose) to further strengthen California protections, is making its way through the state legislature.

“The administration is attempting a wholesale rollback of policies that have pulled many iconic bird species from the brink of extinction,” said Sarah Rose, executive director of Audubon California.  “We’re grateful that California’s leaders recognize the importance of laws like the MBTA to safeguard the millions of migratory birds that spend at least part of the year in our state.”

Under the Trump administration's revised interpretation, the MBTA’s protections apply only to activities that purposefully kill birds. Any “incidental” take—no matter how inevitable, avoidable or devastating the impact on birds—becomes immune from enforcement under the law.  Additionally, for decades, industry has worked with the U.S. Fish and Wildlife Service to take common sense precautions like covering oil waste pits so birds don’t mistake them for safe ponds; insulating small sections of power lines so raptors don’t get electrocuted; siting wind farms away from bird migration routes and habitats. The law has also provided accountability and recovery after oil spills like the Deepwater Horizon.

“Industrial practices that kill birds should be punishable by law, and any attempt by the White House to change that should be challenged in a court of law. We’ll see you in court, Mr. President,” said Yarnold.

In honor of the 100th anniversary of the Migratory Bird Treaty Act, 2018 was declared The Year of the Bird. More than 60 cities, counties or states passed proclamations in celebration of the MBTA’s success.

Find a fact sheet on the MBTA, birds and energy industries here.

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