(New York, August 12, 2020)—A U.S. District Court judge ruled late yesterday that a legal opinion which serves as the basis for the Trump administration rollback of the Migratory Bird Treaty Act (MBTA) does not align with the law’s intent and language. The 100-year-old MBTA is a common-sense statute that requires companies take measures like covering oil waste pits, which birds mistake for bodies of water, and reducing bird electrocutions on power lines. The decision comes as a result of a series of lawsuits brought in 2018 by Audubon, several other conservation groups, and California and seven other states.
Audubon and several partner organizations filed Audubon v. Department of the Interior in May 2018 challenging an opinion by the Department of the Interior saying it will no longer enforce the MBTA in cases of incidental bird deaths, effectively giving a blank check to industry not to avoid gruesome and preventable bird deaths. California and seven other states filed a similar suit in September 2018. In addition to suing the DOI, California Attorney General Xavier Becerra issued a legal advisory in November, 2019 stating that California’s protections for migratory birds remained in effect regardless of the federal rollback. Assemblymember Ash Kalra (D-San Jose) led passage of Assembly Bill 454, sponsored by Audubon California, clarifying existing state safeguards for native birds and closes loopholes where California law defers to federal law.
“California has been a leader in the fight to preserve and strengthen a law that has saved many bird species from extinction, and that birds need more now than ever,” said Mike Lynes, policy director for Audubon California. “Thanks to Attorney General Becerra, Assemblymember Kalra and other strong leaders, we’ve managed to stop some of the administration’s most egregious attempts to weaken the MBTA at our state’s borders. With this court decision, the administration should abandon the regulatory process it started to make this illegal bird-killing policy permanent.”
In her ruling, Judge Valerie Caproni found that the policy “runs counter to the purpose of the MBTA to protect migratory bird populations” and is “contrary to the plain meaning of the MBTA.” Her ruling begins “It is not only a sin to kill a mockingbird, it is also a crime. That has been the letter of the law for the past century. But 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.”
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.
Judge Caproni’s response to the administration’s opinion is clear: “There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds. Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only “some” kills are prohibited.”
“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.”
“For decades this law has been a proven incentive to remind companies to do the right thing for wildlife,” added Greenberger.
Facts and figures on industrial causes of bird mortality in the United States:
- Power lines: Up to 64 million birds per year (Source: http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0101565)
- Communication towers: Up to 7 million birds per year (Source: http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0034025)
- Oil waste pits: 500,000 to 1 million birds per year (Source: http://www.ncbi.nlm.nih.gov/pubmed/16988870)
- Oil spills: The 2010 Deepwater Horizon oil spill is estimated to have killed more than 1 million birds (http://www.audubon.org/news/more-one-million-birds-died-during-deepwater-horizon-disaster)
Media contact: Jason Howe, 415-595-9245, jason.howe@audubon.org
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