Judge Strikes Down Changes to Migratory Bird Protections

A federal judge at the U.S. District Court for the Southern District of New York has ruled against the Trump Administration’s effort to narrow the reach of the Migratory Bird Treaty Act (MBTA) of 1918.

A 2017 legal opinion by the Department of the Interior solicitor’s office concluded that incidental bird take resulting from an otherwise lawful activity is not prohibited under MBTA and that the protections only apply to the intentional taking of a bird.  According to the U.S. Fish and Wildlife Service (USFWS), the term “take” means “to pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture or collect,” with “incidental” take referring to an unintentional taking.

The 2017 opinion has been widely criticized by conservation groups.  Lawsuits challenging the opinion, filed by the National Audubon Society, the Natural Resources Defense Council (NRDC), and a coalition of states led by New York, alleged the Interior Department violated the Administrative Procedure Act when it adopted the new interpretation of the law.  “At the behest of the oil and gas industry, and with no consideration of the resulting impacts to migratory birds, the [2017] Opinion reinterpreted the MBTA to exempt effectively all industrial activities from the Act’s reach,” the challengers wrote in a legal brief.

On August 11, 2020, Judge Valerie Caproni ruled to vacate the 2017 opinion.  “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,” stated Judge Caproni.  “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,” she added. 

Conservation groups applauded the ruling.  “This decision confirms that Interior’s utter failure to uphold the conservation mandate of the U.S. Fish and Wildlife Service simply cannot stand up in a court of law,” said Katie Umekubo, Senior Attorney at NRDC.  “With the legal basis for its actions over the past year defeated, the administration should expect more defeats in court if they try to lock in their attempt to roll back the MBTA,” said Sarah Greenberger, Interim Chief Conservation Officer for the National Audubon Society.

Interior Department spokesperson Conner Swanson said the decision “undermines a common sense interpretation of the law and runs contrary to recent efforts, shared across the political spectrum, to de-criminalize unintentional conduct.”

USFWS also issued a proposed rule in February 2020 that would codify the 2017 opinion.  Interior and USFWS are currently reviewing the comments received in response to the proposed regulation and it is unclear how the ruling will impact the review process. 

Lawmakers in the House are considering related legislation that would clarify regulatory protections for migratory birds.  If enacted, the Migratory Bird Protection Act (H.R. 5552), would amend MBTA to ensure that the “prohibition on the unauthorized take or killing of migratory birds includes incidental take by commercial activities.”  The measure was approved by the House Committee on Natural Resources in January 2020.