The Trump Interior Department is moving ahead with changes to the Migratory Bird Treaty Act that lessen protections for migratory species, such as Great Blue Herons/USFWS
In a final rule to be published in the Federal Register on Thursday, the Trump administration is implementing changes to the Migratory Bird Treaty Act that a federal judge last summer ruled should be tossed out.
Under the rule changes, unintentional killing of migratory birds, such as might occur if birds land on a pond of hazardous wastes, are not criminal. Only "pursuing, hunting, taking, capturing, killing, or attempting to do the same ... directed at migratory birds, their nests, or their eggs" would be illegal under the changes.
Last August U.S. District Judge Valerie Caproni of the Southern District of New York pointed to where the so-called Jorjani Opinion that drove the changes to the act lacked needed substance -- "the Opinion is riddled with ambiguities made only more apparent by the incoherent guidance FWS subsequently issued." -- and was counter to the Interior Department's "prior longstanding position and enforcement practices" under the treaty.
The judge was referring to an opinion written in 2017 by Daniel Jorjani, a deputy solicitor in the Interior Department. It held that penalties under the treaty could be applied only to intentional acts -- hunting and trapping, for instance -- that killed migratory birds. "Incidental" takings, such as the deaths of migratory birds that land on an uncovered pond of hazardous wastes, should not be penalized, the opinion stated.
In the upcoming Federal Register notice, the U.S. Fish and Wildlife Service said it disagreed with the judge's ruling, and noted that the Interior Department in October filed a notice of appeal.
Conservation groups voiced opposition Tuesday to the rule change, maintaining that it was illegal. Defenders of Wildlife pointed out that nearly 200,000 public comments had been received in opposition to the rule change.
“Even though a federal court already ruled that the Trump administration cannot eliminate protections for migratory birds, the administration continues its relentless campaign to undermine environmental protections and harm wildlife,” said Jamie Rappaport Clark, president and CEO of Defenders of Wildlife. “We will ask a Biden administration to restore protections for birds immediately and affirm that the Migratory Bird Treaty Act prohibits incidental take.”
The move to weaken the act comes as billions of birds have gone missing since 1970, according to a Science article referenced in 2019 State of The Birds report.
According to that report, the Ruddy Turnstone, a shorebird, has seen its population plummet 80 percent since 1974; the population of Baltimore Orioles has fallen 44 percent since 1970; and the numbers of the Northern Bobwhite have dropped by 78 percent since 1970.
As a group, species of shorebirds, many of which are migratory, have declined 37 percent since 1974, grassland birds have plunged 53 percent since 1970s, and forest species have fallen 22 percent since 1970, the report notes.
“This brutal blow hits America’s birds when many populations are already plummeting, so it’s really the last thing they need,” said Noah Greenwald, endangered species director at the Center for Biological Diversity, of the rule change. “Trump officials are giving oil companies and other polluters a license to kill birds. Vast numbers of birds will be electrocuted by power lines, drowned in oil waste pits and killed in other easily preventable ways. The only good news is that the courts have the power to, once again, strike down this reckless attack on one of America’s oldest and most important conservation laws.”
“Rest assured that we at American Bird Conservancy will do everything in our power to see that this assault on migratory birds is defeated,” said American Bird Conservancy President Mike Parr.
Along with other groups, National Audubon Society officials said the incoming Biden administration should begin a process to reinstate protections under the Migratory Bird Treaty Act "as well as adding an approach for reasonable permitting under the law. For its part, the new Congress should pass the Migratory Bird Protection Act to clarify these longstanding protections and authorize this common-sense approach. The bill was passed out of the House Natural Resources Committee in the 116th Congress and had a bipartisan group of 90+ co-sponsors."
“As the Trump administration moves to make it easier to kill birds, tens of thousands of bird-lovers across the Western Hemisphere are wrapping up the 121st Audubon Christmas Bird Count, an annual census of birds,” said Sarah Greenberger, senior vice president for conservation policy at Audubon. “We just learned that despite record participation in 2019, six million fewer birds were recorded. While we don’t yet know exactly what caused this decrease it comes amid new science showing alarming trends in bird declines, like the loss of 3 billion birds in North America since 1970.”
Traveler footnote: On Sunday, in Traveler's 100th podcast, we'll sit down with Noah Greenwald from the Center for Biological Diversity to discuss endangered and threatened species that call the National Park System home, and legal battles that swing to and fro over gaining them Endangered Species Act protections.
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