Administration Doubles Down on Bird-Killer Policy

California officials lead state-based fight to preserve 100-year-old bipartisan conservation law

WASHINGTON (January 30, 2020) – Today the U.S. Fish and Wildlife Service is expected to announce/announced a proposed rule that eliminates the Migratory Bird Treaty Act's (MBTA) prohibition on the so-called “incidental take” of migratory birds during industrial activities – predictable or avoidable killing, such as birds flying into uncovered oil pits. The policy change first appeared in a 2017 Department of the Interior legal opinion (M-37050), but with this rulemaking it would be cemented as an official regulation.

 “The Trump administration has declared open season on the regulations that have given us cleaner water and air and brought many bird species back from the brink of extinction,” said Sarah Rose, executive director of Audubon California. “Now, just as two studies have shown that the mounting effects of climate change threaten the survival of a majority of North American bird species, the administration is taking direct aim at rules that would protect them. It’s unconscionable.”

The policy change has been denounced by a bipartisan group of 17 former Interior Department officials, as well as 500 wildlife conservation organizations . The announcement follows a recent report in Science documenting that North America has lost three billion birds since 1970, and an Audubon report finding that climate change threatens two-thirds of North America’s bird species.

Under the Trump administration's revised interpretation, the MBTA’s protections apply only to activities that purposefully kill birds, exempting all industrial hazards from enforcement. Any “incidental” death—no matter how inevitable, avoidable or devastating the impact on birds—becomes immune from enforcement under the law. 

Audubon filed suit in May 2018 challenging that opinion. Eight states, including California, filed a similar suit in September 2018. In July 2019, the district court gave a greenlight for the lawsuit to advance. And this January, the U.S. House Natural Resources Committee voted to advance the Migratory Bird Protection Act, a bill that would counter this rollback and add new innovations to the century-old law.

California officials have taken several steps to block the impact of Trump Administration reversals. Following joining the filing of the May 2018, lawsuit, California Attorney General Xavier Becerra and the state Department of Fish & Wildlife issued guidance stating that incidental take remained illegal in California regardless of federal policy.   Last September, the California Legislature passed Assembly Bill 454, by San Jose Assemblymember Ash Kalra (D-San Jose) to further strengthen California protections.

“California’s leaders are a national example of how the fight to preserve our cherished bird species begins closer to home,” said Rose. “We’re extremely grateful to Attorney General Becerra, to Assemblymember Kalra, and to everyone in our state working to stop these destructive and regressive policies at the state line.”

For decades, the U.S. Fish and Wildlife Service has worked with industry to advance 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. BP paid a $100 million MBTA fine for the death of an estimated one million birds, which is restoring habitat for birds impacted by the spill. Under this new policy, oil companies will not be responsible for any bird deaths.

 “The Trump Administration’s Bird Killer Department, formerly known as the Department of the Interior, just gets crueler and more craven every day,” said David Yarnold, president and CEO of Audubon (@david_yarnold).  “And today they are doubling down despite the fact that America did not elect this administration to kill birds. For decades, both Republican and Democratic administrations have relied on the Migratory Bird Treaty Act as the primary tool for protecting birds in this country. This mean-spirited rule is pure politics and birds will pay the price.”

In 2018, in celebration of 100th anniversary of the Migratory Bird Treaty Act, more than 60 cities, counties or states passed proclamations in celebration of the MBTA’s success.

Facts and figures on industrial causes of bird mortality in the United States:


Media contact: Jason Howe,, 415.595.9245 

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 how to help at and follow us on Twitter and Instagram at @audubonsociety.

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