Birds of Regulatory Prey Interior reverses an Obama rule punishing accidental bird killings.
https://www.wsj.com/articles/birds-of-regulatory-prey-1514500651
Animal spirits revived this year after the Trump Administration halted its predecessor’s regulatory predations. Consider the Interior Department’s legal memo last week that rescinds an Obama Administration policy of criminalizing citizens who accidentally kill migratory birds.
The Migratory Bird Treaty Act of 1918 makes it a federal crime to “pursue, hunt, take, capture or kill” migratory birds. Offenders can be punished with up to six months in prison and fined $15,000 per violation. The law was originally intended to protect birds migrating between Canada, Mexico, Japan, Russia and the U.S. from poachers who sold their feathers for a profit.
Over the last 100 years, the list of protected birds has grown to more than a thousand species including crows, ducks and finches. President Obama added nearly 200 bird species to the list while calling open season on energy companies whose activities “incidentally” harm birds. In 2011 federal prosectors charged seven oil companies in North Dakota after more than two dozen birds flew into their tar pits.
An equal opportunity business harasser, the Obama Administration targeted wind farms operated by Duke Energy and PacifiCorp Energy that were found to have maimed hundreds of birds. Individuals also wound up in the government’s crosshairs—for instance, a tree-trimmer in Oakland was investigated by the U.S. Fish and Wildlife Service in 2014 after accidentally injuring five black-crowned night herons.
There’s no limiting principle to the government’s prosecutorial discretion. Homeowners and drivers could be prosecuted if birds fly into their windows. Legal risks have increased defensive contracting, which has driven up costs on construction projects. Utilities, telecom companies and local governments have delayed projects to avoid harming bird nests and potentially ruffling the feathers of wildlife regulators.
While some companies have coughed up millions to settle the government’s charges, Citgo Petroleum challenged its dubious legal theory that businesses could be held criminally liable for incidental bird deaths—three dozen birds had flown into its oil tanks—and was exonerated by the Fifth Circuit Court of Appeals in 2015.
After examining the law’s text, origin and other statutes, the Fifth Circuit “agree[d] with the Eighth and Ninth circuits that a ‘taking’ is limited to deliberate acts done directly and intentionally to migratory birds.” The Fifth Circuit also noted that the “scope of liability under the government’s preferred interpretation is hard to overstate,” and “would enable the government to prosecute at will and even capriciously (but for the minimal protection of prosecutorial discretion) for harsh penalties.”
The Obama Administration nonetheless issued a legal opinion during its final two weeks concluding that the Migratory Bird Treaty Act broadly prohibits incidental takings. Interior’s new directive reverses the Obama guidance, concluding that the government can “only criminalize affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.”
It adds that “to apply [the law] to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions.” Amen.
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