Eagles And Mockingbirds Catch A Break As Judge Strikes Down Trump Bird Opinion

Aug 12, 2020
Originally published on August 12, 2020 5:54 pm

A federal judge in New York struck down a Trump administration decision to scale back U.S. government protections for migratory birds. The change by the administration would have allowed companies that accidentally kill migratory birds during the course of their work no longer to face the possibility of criminal prosecution.

In a 31-page document, U.S. District Judge Valerie Caproni cited the novel To Kill a Mockingbird to support her decision.

"It is not only a sin to kill a mockingbird, it is also a crime," Caproni wrote. "That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence."

Just before leaving office, the Obama administration issued a legal opinion saying that the Migratory Bird Treaty Act does include the incidental killing of birds. In 2017, the Trump administration suspended that opinion pending review. Later it released a legal memo saying it would not criminally prosecute such killings.

Caproni was clear in her ruling, striking down the administration's interpretation of "takings" and "killings" of birds as applicable only if the animals are targeted specifically.

"There is nothing in the text of the [Migratory Bird Treaty Act] that suggests that in order to fall within its prohibition, activity must be directed specifically at birds," Caproni said. "Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only 'some' kills are prohibited."

In 2018, the National Audubon Society and other conservation groups, along with eight states, filed lawsuits against the Trump administration's legal opinion, which the court joined into one.

"This is a huge victory for birds and it comes at a critical time," Sarah Greenberger, interim chief conservation officer for the National Audubon Society, said in a press release. "Science tells us that we've lost 3 billion birds in less than a human lifetime and that two-thirds of North American birds are at risk of extinction due to climate change."

According to the U.S. Fish and Wildlife Service, tens of millions of birds every year are killed by human-caused threats, involving flying into communication towers and wind turbines, as well as oil spills.

Environmental groups assert that if the Trump administration's legal opinion had been in place in 2010 when BP caused the Deepwater Horizon oil spill, the company would have faced no consequences under the Migratory Bird Treaty Act for the 1 million birds killed.

"For decades this law has been a proven incentive to remind companies to do the right thing for wildlife," Greenberger said.

Interior Department spokesperson Conner Swanson defended the administration rule change to The Washington Post on Tuesday.

"Today's opinion undermines a common sense interpretation of the law and runs contrary to recent efforts, shared across the political spectrum, to decriminalize unintentional conduct," Swanson wrote in an email to the Post.

The Department of the Interior did not respond to NPR's request for comment in time for publication.

Critics of the century-old Migratory Bird Treaty Act, such as energy companies, have opposed the law as too broad, according to Reuters.

The Migratory Bird Treaty Act was enacted in 1918. Today, any violation of the act is a misdemeanor punishable by a fine of up to $15,000 and imprisonment for up to six months. The Fish and Wildlife Service keeps a list of birds protected by the law, including eagles, owls, mockingbirds and vultures.

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