Interior memo scaling back bird protections is 'contrary to law,' court rules

A U.S. district court struck down the legal opinion used to justify the Trump administration’s coming rollback of protections for migratory birds late Monday, writing that the Department of the Interior memo was “contrary to law.”

The Migratory Bird Treaty Act (MBTA) has for over 100 years offered protections to 1,000 different types of birds, instigating penalties for companies whose projects or infrastructure harm them.

But a 2017 legal opinion from now Interior Solicitor Daniel Jorjani advised punishing the oil and gas industry, construction companies and others only if their work intentionally kills birds, ending the practice of punishing companies that “incidentally” kill birds.

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A decision from U.S. District Judge Valerie Caproni that begins with a quote from To Kill A Mockingbird wrote that “the Jorjani opinion’s interpretation runs counter to the purpose of the MBTA to protect migratory bird populations.”

“The opinion freezes the MBTA in time as a hunting-regulation statute, preventing it from addressing modern threats to migrating bird populations,” she wrote in a decision vacating the opinion, calling it “an unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds.”

In his opinion, Jorjani wrote applying the law to “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.”

The decision from the U.S District Court for the Southern District of New York was welcome news to environmentalists, who say Interior has lost the key legal basis for regulations set to mirror those laid out in Jorjani’s proposal.

“It makes it pretty hard for them to move forward with that rule,” said Noah Greenwald, endangered species director at the Center for Biological Diversity, one of the groups that sued over the opinion.

“We’re elated to see this terrible opinion overturned at a time when scientists are warning that we’ve lost as many as 3 billion birds [in North America] in the last 50 years," he added. "To relax rules, to have the unhampered killing or birds didn't make any sense was terrible and cruel really.”

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Greenwald said the Jorjani opinion would have left companies responsible only for unlikely direct killings as opposed to negligence. He cited the oil industry in particular, arguing it should be held responsible when birds drown in uncovered waste ponds or during an oil spill.

Interior criticized the court’s decision, saying it “undermines a common sense interpretation of the law and runs contrary to recent efforts, shared across the political spectrum, to de-criminalize unintentional conduct.”

Bird loss has been attributed to a number of factors, including habitat loss, pesticide use and climate change.

“This is a huge victory for birds and it comes at a critical time,” Sarah Greenberger, with the National Audubon Society, said in a statement.