Right and left wings battle over migratory bird treaty

By Michael Doyle | 11/22/2017 12:48 PM EST

Federal officials might be grounded from pursuing companies whose operations incidentally kill migratory birds, under a two-pronged maneuver now advancing publicly on Capitol Hill and quietly inside the Interior Department.

Federal officials might be grounded from pursuing companies whose operations incidentally kill migratory birds, under a two-pronged maneuver now advancing publicly on Capitol Hill and quietly inside the Interior Department.

Homebuilders and the oil, gas and mining industries, among others, all care about what happens next. So should the avian population, currently protected by a Migratory Bird Treaty Act that’s riddled by confusion about the crucial word "take."

"This ambiguous language has led to overzealous [federal] guidance and regulations on energy operators in my state," said Rep. Liz Cheney (R-Wyo.). "It’s not just oil and gas; this is also hindering our wind turbine operators as well as homebuilders and coal mines."


But environmentalists oppose the efforts.

"Efforts to undermine the Migratory Bird Treaty Act — whether from Congress or from the Department of the Interior — threaten millions of North American birds, many of which are only still around because a different Congress and a different White House had the good sense to pass the law in the first place almost 100 years ago," said David O’Neill, the National Audubon Society’s chief conservation officer.

The law prohibits the unauthorized taking of more than 800 species of migratory birds. The Fish and Wildlife Service currently contends this includes killing that is "incidental" to industrial or commercial activities, regardless of the corporate actors’ intentions.

In 1998, for instance, the Moon Lake Electric Association in Colorado was charged with taking 12 golden eagles and other birds that had perched on power poles conveying electricity to an oil field. In refusing to dismiss the charges, the trial judge reasoned that "the MBTA does not seem overly concerned with how captivity, injury, or death occurs."

Some courts, though, have interpreted "take" as being limited to hunting and other willful acts. The resulting conflict over the law’s reach frustrates those subject to its penalties and has stirred efforts to refine the word’s meaning.

"Our operators take multiple precautions to ensure migratory birds, as well as other wildlife, are not injured during operations, but if these precautions fail, the current language could impose criminal liability for the taking of the bird even though it’s accidental," Cheney said at a recent House hearing.

Cheney is leading one effort to steer the law in industry’s direction. Earlier this month, she nestled an amendment into the "SECURE American Energy Act" (H.R. 4239), an oil and gas development bill, specifying that accidental or incidental take was not covered by the MBTA (Greenwire, Nov. 8).

The amendment matters to organizations including the National Association of Manufacturers, the National Stripper Well Association and the Solar Energy Industries Association, all of which identify an interest in the MBTA in their lobbying statements.

The House Natural Resources Committee adopted the amendment by a 20-14 vote, over the opposition of Democratic Rep. Raúl Grijalva of Arizona, who argued that Cheney’s move "would effectively gut" the migratory bird law.

"It is entirely appropriate for the Fish and Wildlife Service to require permits and enforce violations by energy developers who can’t be bothered to protect birds," Grijalva said.

While the energy bill proceeds with Cheney’s amendment, a related effort could be afoot in the office of Interior’s solicitor. There, attorneys appointed in the Trump administration are second-guessing a key legal opinion issued by their predecessors.

In the Jan. 10 legal opinion, Interior Solicitor Hilary Tompkins had concluded that the Migratory Bird Treaty Act covered incidental as well as intentional takings. She identified the law as a "strict liability statute," meaning one’s state of mind doesn’t matter.

"There is no reason to believe that Congress intended to limit the term ‘take’ in the MBTA to hunting or to otherwise require deliberate, intentional action," Tompkins wrote.

But in early February, the newly recast Interior solicitor’s office suspended and temporarily withdrew Tompkins’ Jan. 10 legal opinion.

The review is still underway as lawyers scrutinize competing ideas, including those reflected in court decisions that have sided with industry over regulators.

Legal battles

"Take" itself is a broad term, currently defined in the Fish and Wildlife Service’s regulations as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect."

Penalties for violations can include fines up to $15,000 and up to six months in prison for a misdemeanor.

Tompkins noted that federal officials had investigated "hundreds of activities or hazards that kill birds in the incidental-take context, including oil pits, power-line electrocutions, contaminated waste pools, pesticide application, [and] oil spills."

In 2010, for instance, the 10th U.S. Circuit Court of Appeals partially upheld the misdemeanor convictions of two Kansas oil rig operators for violating the MBTA after several dead birds were found trapped in cylindrical devices used at oil drilling sites.

The two operators were fined a total of $1,500 and $500, respectively.

"Simply stated … it is not necessary to prove that a defendant violated the Migratory Bird Treaty Act with specific intent or guilty knowledge," the appellate court ruled.

Tompkins noted in an email today, "There has been debate in the courts about whether the Migratory Bird Treaty Act applies to the accidental killing of migratory birds, with courts coming out on both sides of the issue."

In 2015, for example, the 5th U.S. Circuit Court of Appeals reversed the misdemeanor convictions of Citgo Petroleum Corp. and Citgo Refining and Chemicals Co. Citgo had originally been charged after 10 birds were found in two large open-top tanks at a Texas refinery.

The trial judge imposed a total of $45,000 in fines for the Migratory Bird Treaty Act violations, which the appellate court reversed with a stark warning about the consequences of expanding the law too broadly.

"If the MBTA prohibits all acts or omissions that ‘directly’ kill birds, where bird deaths are ‘foreseeable,’ then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty," the 5th Circuit cautioned, in an opinion by Judge Edith Jones.

The ongoing Interior solicitor’s review may not necessarily adopt the narrow interpretation of "take" endorsed by the 5th Circuit’s opinion, but failure to do so would almost certainly dash the expectations of Trump administration allies.

"A change in the legal interpretation will … impact the related debate about whether there is a need for incidental take permits," Tompkins said today. "And as we have seen on other fronts, there could be legal challenges if Interior abandons the strict liability interpretation."