For 100 years, the Migratory Bird Treaty Act (MBTA) has protected nearly 1000 bird species in the United States against being “taken” or killed except under prescribed circumstances. This statute prohibits hunters from intentionally killing birds without a permit, but has also been interpreted by courts and the Interior Department to prohibit incidental taking – the unintentional destruction of birds or nests through some instrumentality or activity like spraying pesticides or the erection of wind turbines. The MBTA is a strict liability statute. If a covered bird dies then misdemeanor liability is established despite the efforts or good will of the defendant.
The MBTA itself is silent about whether intent is a necessary element of the misdemeanor, but Congress has amended the statute several times without correcting the prevailing judicial interpretation that intent to harm birds is not required. In fact, the amendments carved out special areas where intent was necessary, strongly implying that in all other areas intent was unnecessary.
This interpretation was formally adopted by the Interior Department in a legal memo issued in the waning days of the Obama Administration. However, a new interpretive memo was issued in December 2017 by the Trump Interior Department reversing the Obama approach and essentially eliminating the enforcement of the MBTA against incidental taking.
This is an historic and meaningful about-face. Incidental taking cases are largely against the oil industry – the two largest prosecutions came after the Exxon Valdez spill and the Deepwater Horizon oil well disaster. Oil production activity is obviously not intentionally designed to kill birds, so without enforcement against incidental taking the overwhelming majority of large scale bird kills will have no legal consequences. Since private citizens have no right to file lawsuits to enforce the MBTA, the Trump Interior Department’s direction to Fish and Wildlife enforcement officials to lay off incidental taking cases is hugely significant.
The author of the new Trump enforcement memo is Dan Jorjani, a long-time advisor to billionaire oil man Charles Koch. The Obama interpretation also angered Harold Hamm, a billionaire backer of Donald Trump whose Continental Resources company was prosecuted for repeatedly failing to erect nets over waste oil pits. But seventeen former Interior officials, including Fish and Wildlife directors under Presidents Nixon, Bush I, Clinton, Bush II and Obama have repudiated Jorjani’s interpretation. And it is easy to pick apart Jorjani’s rationale. It is clear that in the Trump Administration good conservation policy and quality legal analysis has given way to rewarding small-government, libertarian political contributors.
The Trump memo justifies the enforcement change in two ways. First, three U.S. Courts of Appeals have ruled that prosecution of a corporation that unintentionally kills birds in the course of a business activity is inconsistent with the meaning of the word “take” as used in the statute. Two of these cases dealt with habitat destruction from cutting trees. The rationale in these cases was that when the statute was passed 100 years ago taking referred to hunting or capturing birds, clearly intentional conduct directed at birds. These courts were concerned with the unfairness of extending criminal liability to otherwise innocent business activity.
Several other Courts of Appeals have supported the Obama approach, but the Trump Administration has chosen to ignore those cases. The MBTA is an historic conservation statute with broad scope. It is the responsibility of the Interior Department to interpret the statute to give it broad effect. This is exactly what the Department has done for 100 years by considering as prohibited incidental taking without actual intent to harm birds. If Congress intended to exclude incidental taking from the scope of the statute, it could have said so on many occasions. But this issue seems beside the point. Since the statute also prohibits killing birds “by any means or in any manner” it is simply not necessary to resolve what the word “take” meant 100 years ago. Incidental, unintentional killing is clearly covered.
The second justification for the enforcement change is that the Obama interpretation was open-ended and could potentially have criminalized millions of Americans who merely have a large picture window into which a bird commits suicide, or whose cat behaves like a cat. This issue has been raised in many of the litigated cases but has never gotten judicial traction. One court explained that to get a conviction for incidental taking, the prosecution would still have to prove that the killing of birds should have been reasonably anticipated or foreseen from the nature of the defendant’s activity. This is not intent to cause a bird kill, but rather awareness that it could happen. The court said “[b]ecause the death of a protected bird is generally not a probable consequence of driving an automobile, piloting an airplane, maintaining an office building, or living in a residential dwelling with a picture window, such activities would not normally result in liability.”
Some commentators have remarked that the public has been whipsawed between an Obama enforcement approach that went too far and a Trump enforcement approach that doesn’t go nearly far enough. Clearly the Trump interpretation of the MBTA guts the statute and is unacceptable. But it is hard to escape the sense that interpreting a statute broadly to create potential (and actual) business liability without considering the intent of the business, or the efforts of the business to comply, is asking for trouble. Businesses caught up in MBTA enforcement have been frustrated and believe they have been treated unfairly. This has led them to seek political help, which they have now found.
Perhaps the best way through this mess is for Congress to amend the MBTA to confirm clearly that the statute reaches incidental taking, while requiring Fish and Wildlife inspectors to first warn a business with a structure or practice likely to harm birds, and allowing a substantial penalty reduction for good faith efforts to comply. Without this kind of balance the MBTA will simply be unstable, lurching from one enforcement interpretation to the next.