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Conservation groups sue feds over bird law

Blackburnian Warbler is one of hundreds of migratory birds protected by the Migratory Bird Treaty Act. Photo by Alexis Hayes

Bird-conservation and other environmental groups are taking the fight for the Migratory Bird Treaty Act (MBTA) to the courts.

National Audubon Society, American Bird Conservancy, Center for Biological Diversity, and Defenders of Wildlife sued the Trump administration today, challenging its move in December 2017 to eliminate longstanding protections for waterfowl, raptors, and songbirds under the MBTA.

The National Wildlife Federation and the Natural Resources Defense Council filed a separate suit over the same issue. The groups are being represented by different counsel and filed separately based on on-going litigation and procedural issues.

The administration’s legal opinion issued in December reversed decades of government policy and practice — by both Democratic and Republican administrations — on the implementation and enforcement of the MBTA.

The act’s prohibition on the killing or “taking” of migratory birds has long been understood to extend to incidental take from industrial activities — meaning unintentional but predictable and avoidable killing. Under the administration’s revised interpretation, the MBTA’s protections will apply only to activities that purposefully kill birds. Any “incidental” take — no matter how inevitable or devastating the impact on birds — is now immune from enforcement under the law.

The MBTA also protects feeder birds such as Chipping Sparrow. Photo by Joan Wiitanen

Audubon’s lawsuit — National Audubon Society v. Department of the Interior — was filed in the Southern District of New York. It calls the administration’s move to reinterpret the MBTA “unlawful and arbitrary and capricious.”

It reads, in part:

“The Memorandum’s draconian, all or nothing approach to implementation and enforcement of the MBTA — under which the Act’s take prohibition must either be applied in an all-encompassing manner regardless of any considerations of proximate causation or foreseeability, or the Act may never be applied to incidental take, even for, e.g., industrial activities as to which the killing and taking of a large number of migratory birds is entirely foreseeable — arbitrarily and irrationally ignores reasonable middle-ground approaches for implementing and enforcing the Act. This refusal to consider sensible alternatives is arbitrary and capricious and an abuse of discretion and hence violates the APA [Administrative Procedure Act].”

The lawsuits request that the court strike down the Interior Department’s policy.

Noah Greenwald, endangered species director at the Center for Biological Diversity, said, “The Trump administration’s rollback of the Migratory Bird Treaty Act is an absolute disaster for America’s birds. Many bird species are already declining from habitat destruction and a host of other threats. This rule will allow the death of even more birds, whether they’re landing on polluted ponds left uncovered by the oil and gas industry or have their nest trees cut down from underneath them. It’s tragic.”

Mike Parr, president of American Bird Conservancy, added: “The new policy makes it much harder to protect birds from major bird traps — threats like oil pits, wind turbines, and communication towers in bird migration hotspots. Leaving these threats unattended is like leaving manhole covers off along the sidewalk during rush hour — it’s negligent, irresponsible, and guaranteed to cause harm.”

The government has 60 days to answer or move to dismiss the suits. The court is unlikely to take any action before then.

Stay tuned. — Matt Mendenhall, Editor


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