Legal threat eases for accidental bird deaths

US oil and gas operators can worry less about federal prosecution for accidentally killing migratory birds under a new opinion from the Department of the Interior Solicitor’s office.

US oil and gas operators can worry less about federal prosecution for accidentally killing migratory birds under a new opinion from the Department of the Interior Solicitor’s office.

The office has ruled that unintended killing does not violate the Migratory Bird Treaty Act (MBTA).

“Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to 6 months in jail and a $15,000 penalty for each and every bird injured or killed,” Principal Deputy Solicitor Daniel H. Jorjani said in a Dec. 22 opinion.

“The text, history, and purpose of the MBTA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs by killing or capturing to human control.”

The opinion overturns Opinion M-37401, which was suspended for review on Feb. 6 with three others.

The new opinion “makes clear that the [MBTA] should not be used for overzealous enforcement of criminal penalties on those engaging in otherwise lawful activities,” American Petroleum Institute Upstream and Industry Operations Group Director Erik Milito said.

Samantha McDonald, government relations director at the Independent Petroleum Association of America, said that the MBTA’s language was expanded in recent years beyond its original intent over disputes of incidental or intentional “takes” of protected birds. “Unfortunately, recent legal interpretation of the Act has placed blame on lawful industries and activities,” she said.

During the Obama administration, seven oil and 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,” Western Energy Alliance Pres. Kathleen Sgamma said in Denver. “Today’s solicitor’s opinion returns the rule of law and will help prevent the disparate treatment of industries and the politically motivated use of the MBTA as a weapon.”

Tim Charters, senior government affairs director at the National Ocean Industries Association, said the new opinion “brings a common sense approach by recognizing many circuit court findings that the scope of takings under the MBTA only prohibits intentional acts that directly kill migratory birds.”

Contact Nick Snow atnicks@pennwell.com

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