Trump admin says ‘incidental’ bird killings aren't illegal

Trump admin says ‘incidental’ bird killings aren't illegal
© U.S. Fish and Wildlife Service

The Trump administration concluded Friday that “incidental” killings of about 1,000 bird species are not illegal.

The legal opinion, drafted by the Interior Department’s Principal Deputy Assistant Solicitor Daniel Jorjani, seeks to reverse a policy issued in the final days of the Obama administration that found such incidental killings or harm were illegal under the Migratory Bird Treaty Act (MBTA).

The Trump policy is a boon to offshore drillers, wind companies, oil refiners and others who faced thousands of dollars of potential fines when migratory birds were killed by their operations.

“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 six months in jail and a $15,000 penalty for each and every bird injured or killed,” Jorjani wrote in the memo released late Friday.

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Interior spokeswoman Heather Swift said the Obama administration’s policy “relied on prosecutorial discretion to administer justice,” while the one issued Friday “gets the government’s interpretation of the law back in line with the MBTA’s original intent, no longer criminalizing accidental killing of birds.”

Instead, Interior will only seek to punish people and companies under the migratory bird law that deliberately kill the animals.

The policy applies to a wide range of birds like the black-footed albatross, the tricolored blackbird, the snow bunting and hundreds of others.

The energy industry applauded the new legal opinion.

“This opinion makes clear that the Migratory Bird Treaty Act should not be used for overzealous enforcement of criminal penalties on those engaging in otherwise lawful activities,” Erik Milito, director of upstream operations at the American Petroleum Institute, said in a statement.

“The department’s approach is an example of astute governance that provides certainty for responsible owners and operators of oil and natural gas facilities,” he said.

The National Ocean Industries Association, which represents offshore oil and gas drillers as well as offshore wind companies, also welcomed the policy.

“Over the last few years, the management of  ‘take' under MBTA has been riddled with flawed decisions that have created massive uncertainty,” said Tim Charters, the group’s senior director of government affairs.

“Thankfully, today’s action 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,” he said.

But conservationists warned that it puts significant numbers of birds in peril.

“Gutting the MBTA runs counter to decades of legal precedent as well as basic conservative principles — for generations Republicans and Democrats have embraced both conservation and economic growth and now this administration is pitting them against each other. The Migratory Bird Treaty Act is one of the most important conservation laws we have,” said David O’Neill, the National Audubon Society’s chief conservation officer.