The Fish and Wildlife Service on Tuesday finalized its reinterpretation of a regulation that defines the scope of the 1918 Migratory Bird Treaty Act, relieving companies and individuals of any legal liability for killing migratory birds if the deaths are deemed accidental.
“This rule simply reaffirms the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird,” Interior Secretary David Bernhardt said in a statement. “This opinion has been adopted by several courts, including the U.S. Court of Appeals for the Fifth Circuit.”
The FWS published an analysis in November outlining the effects of relaxing the rule’s interpretation. The report also concluded that the majority of environmental consequences from redefining the Migratory Bird Treaty Act would be “likely negative” — whereas making litigation of “incidental take” the standard procedure “would likely incentivize more entities to implement best practices” and “could lead to positive indirect effects on migratory birds.”
In the report, the department argued that “federal courts have interpreted the MBTA inconsistently, both by creating different exceptions to strict liability and in its application to incidental take.” The revised Migratory Bird Treaty Act, the administration argued, would clarify the law and prevent such inconsistencies, “thus provid[ing] legal certainty on the application of the MBTA to incidental take.”
Critics have argued that the administration’s regulatory revision “would overturn decades of bipartisan precedent,” according to the National Audubon Society.
“The Trump administration is kicking off the new year and its remaining weeks by finalizing its illegal bird-killer policy,” Sarah Greenberger, Audubon senior vice president for conservation policy, said Tuesday. “This brazen effort will most certainly be in vain as the administration already found out in court that it can’t unilaterally gut the Migratory Bird Treaty Act and its obligation to protect and conserve birds.”
Under the interpretation, it’s possible that events such as BP’s Deepwater Horizon explosion would no longer leave companies liable for the more than 1 million birds killed by those incidents. Because of the Migratory Bird Treaty Act and the enforcement of incidental take, BP paid a $100 million settlement that went toward funding wetland restoration in the United States.
The report also noted that the law, as it stands, only affects migratory birds. That’s roughly 4 billion birds in the U.S. at any given time each year, according to a study from Cornell University.
The new rule does not affect protections afforded to migratory birds from the Endangered Species Act or the Bald and Golden Eagle Protection Act, nor does it affect existing state laws or regulations.
“The Trump administration is committed to using science and the law as the foundation of our decisions at the Service,” FWS Director Aurelia Skipwith said. “Employing an open and transparent public process to finalize today’s action emphasizes our dedication to conservation of migratory birds and to providing regulatory certainty.”
The FWS’s move comes after a 2019 study published in Science found that North American songbird populations have declined by nearly one-third since 1970, the equivalent of 3 billion birds disappearing — a trend that does not appear to be slowing.
“As the Trump administration moves to make it easier to kill birds, tens of thousands of bird-lovers across the Western Hemisphere are wrapping up the 121st Audubon Christmas Bird Count, an annual census of birds,” Greenberger said. “We just learned that despite record participation in 2019, six million fewer birds were recorded. While we don’t yet know exactly what caused this decrease it comes amid new science showing alarming trends in bird declines.”
The FWS defended the rules change against the criticism. An FWS spokesperson told the Washington Examiner that the “conservation of migratory birds continues to be one of the highest priorities of the U.S. Fish and Wildlife Service” but that it was “important to bring regulatory certainty to the public.”
“We have numerous partners and stakeholders in federal and state agencies, industry, local organizations and other entities that we will continue to work with to implement voluntary best practices for reducing threats to birds and conserving their habitat,” the FWS spokesperson said. “We will continue to enforce the Act and investigate incidents where the prohibition on the intentional take of birds has been violated.”
The rule goes into effect 30 days after being published in the Federal Register.
