Early in the last century, the US Congress addressed a clear problem: Uncontrolled hunting had ravaged bird populations. Its repair, to judge by the enduring abundance of creatures of the air, worked. Last month, repair came also to confusion born of a century of associated legal dispute-and to regulatory zeal for which confusion means opportunity.
The new fix is a Department of the Interior solicitor's memorandum, written by Principal Deputy Solicitor Daniel H. Jorjani, reversing a predecessor document suspended early last year. At the end of 41 pages of legal analysis, Jorjani concludes that the Migratory Bird Treaty Act of 1918 (MBTA) does not criminalize the accidental killing of birds or destruction of nests. In view of the problem Congress originally wanted to solve-excessive hunting-this seems logical. But law has its complications.
Constitutional snag
The Constitution is one of them. When Congress passed a law to control bird hunting, courts ruled that only states had authority to do so. Lawmakers then hitched federal treaty power to the tendency of bird migration to disregard international borders. Federal control of bird hunting thus became possible as part of agreements with other countries. Congress passed MBTA, a toughened version of the law that yielded to constitutional challenge, to implement a convention adopted by the US and UK, acting for Canada, on bird protection.
Other treaties and laws built on the foundation Congress laid with the MBTA, which now protects more than 1,000 species. Violations generally are misdemeanors punishable by as much as 6 months in prison and $15,000 in fines. MBTA offenses can become felonies subject to stricter punishment when they involve sale or barter. In some cases, charges have applied to every affected bird.
In the 1970s, federal prosecutors began filing criminal charges against entities, including oil and gas companies, whose activities incidentally resulted in the "taking" of migratory birds. The concept of "incidental take" emerged in US Fish & Wildlife Service (FWS) manuals. The phrase essentially means the death, pursuit, or capture of a bird resulting from differently intended activities. The FWS has long argued that the MBTA prohibits incidental take and not just the intentional kind.
Some courts have agreed with that position; others have not. Conflict intensified when the FWS came under criticism from congressional Republicans for enforcing MBTA and other bird-protection laws more vigorously against producers of hydrocarbon energy than against generators of electric power from wind and solar energy. In response to rising numbers of bird deaths at wind farms, the administration expanded a program enabling operators of those facilities to acquire long-term permits sanctioning specific numbers of killings. "During the Obama administration," says Western Energy Alliance Pres. Kathleen Sgamma, "seven oil and natural gas companies were prosecuted for killing 28 birds at the same time that wind energy companies were allowed to kill thousands of birds, including bald and golden eagles."
Preferential application of law to help renewable energy and hurt oil and gas was a regrettably consistent pattern of Obama-era regulation, of course. Political motives behind this approach to MBTA enforcement are clear in timing of the now-overturned solicitor's memorandum attempting to institutionalize the view that accidentally killing a bird makes someone a criminal. The memorandum appeared 10 days before Obama left office.
What Congress intended
When it passed the MBTA, Congress clearly intended to halt the wanton, often commercially motivated, and deliberate killing of birds. It did not intend to promote one form of energy at the expense of others. And it cannot have wanted to apply strict criminal liability to any killing associated with humanity of a feathered animal. That interpretation, Jarjani says, would "turn every American who owns a cat, drives a car, or owns a home-that is to say, the vast majority of Americans-into a potential criminal."
But that's the insidious tyranny of regulation that subordinates constitutional prudence to environmental idealism. Jarjani's well-reasoned memorandum relates to more than birds and energy.
