Do As We Say, Not As We Did.

by Greg Walcher on February 1, 2018

If your cat kills a bird, could you be fined $15,000 and spend six months in jail? If a bird flies into the side of your house, did you kill it, just by owning the house? If a truck hits a bird, did the company violate federal law?

The common sense answer to these questions is, of course not. But the technical legal answer may be yes. It depends on whether the law applies differently when birds are killed on purpose, or accidentally.

At issue is the Migratory Bird Treaty Act. Stemming from a 1918 treaty with Canada (and later Mexico, Japan, and Russia), the law was adopted at a time when hats and other fashions created a worldwide demand for bird feathers, risking the extinction of several species of birds. It forbid anyone to kill, possess, import, export, transport, sell, purchase, or barter, any migratory bird or its parts, nests, or eggs without a federal permit. It protects over 1,000 species, nearly every bird in North America, and violators face stiff fines and possible jail time.

The common-sense question is, should a law intended to ban commercial trafficking, apply equally to unintentional bird deaths resulting from otherwise legal activity? That depends on who you ask. The government has applied the law unequally in recent years, for instance punishing oil and gas companies whose operations result in bird deaths, while providing waivers to wind farms. Court cases also fail to provide clarity; three federal appeals courts say the law does not apply to accidental conduct, but two say that it does. Thus, all that really matters is the opinion of the current officeholders.

During its last month, the Obama Administration issued a “Solicitor’s Opinion” concluding that the Act does, in fact, criminalize accidental bird deaths caused by otherwise legal and normal activity. Such a broad interpretation turns every American who owns a cat, drives a car, or owns a home (nearly all Americans) into potential criminals, as well as every business that owns buildings, or operates facilities from sawmills and oil rigs to farms and ranches. The new interpretation was not a regulation, adopted through any public process, but simply a memo describing how the law would be interpreted and enforced.

The new Administration, under the leadership of Interior Secretary Ryan Zinke, has reversed that absurd course, clarifying that the law will not be used to criminalize bird deaths that accidentally result from otherwise legal activity. From the firestorm of reaction, you would think the new opinion reverses a century of protection and will cause wholesale extinctions of vast bird populations. A group of former federal officials has written a highly-publicized letter objecting to this “new” interpretation. Signers of the letter include several Obama Administration officials involved in the eleventh-hour ruling, so it is not surprising that they would object to the reversal. But the letter was also signed by some former officials who oversaw the issue under other previous Administrations. Their objection is misinformed, if not flatly disingenuous.

That seems clear because, while expressing concern about the “new” policy, the letter fails to acknowledge that the policy being reversed was also new. The signers call for this latest opinion to be withdrawn, implying a need to return to the way they always enforced the law, with common sense and prosecutorial discretion. But the Obama policy, now being reversed, was not the way these folks enforced the law when they were in power.

Signers include two former Deputy Secretaries, three former Assistant Secretaries, five former Fish and Wildlife Service Directors, and several retired career officials. They claim the new legal opinion “is contrary to the long-standing interpretation by every administration… since at least the 1970’s, who held that the Migratory Bird Treaty Act strictly prohibits the unregulated killing of birds.” Meaning everyone who killed a bird, accidental or otherwise, had to either have a federal permit or go to jail? Or that the law can be enforced against all the people we dislike, but not against our allies? That’s what the Obama interpretation allowed, but the law was never enforced that way – not by any of the letter’s signers. They seem to be asking the new Administration: do what we say, not what we did.

Government officials and prosecutors have a good deal of necessary discretion, and have generally used it wisely, to avoid applying such a vague law in ways it was never intended. The new policy is designed simply to re-establish common sense, and acknowledge the difference between “accidentally” and “on purpose.”

A version of this column appeared in the Grand Junction Daily Sentinel January 26, 2018.

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