Bolster protection of migratory birds

A short-billed dowitcher probes for food on a mudflat at Huntington Beach State Park. (Bryan Stevens/Provided)

Nearly a century ago, in one of the nation’s early steps to protect wildlife, Congress passed the Migratory Bird Treaty Act. The law was a response to the slaughter and commercial trade of birds that contributed to the extinction of the Passenger Pigeon and nearly finished off the country’s Snowy Egrets, too.

The Migratory Bird Treaty Act remains a flagship piece of environmental legislation today. Its language is clear: Without a permit, it is illegal to pursue, hunt, take, capture, or kill migratory birds “by any means or in any manner.”

Despite its straightforward language, the Migratory Bird Treaty Act is now under attack.

In September, in United States v. Citgo Petroleum Corp., the 5th U.S. Circuit Court of Appeals, in a regrettably narrow interpretation of the Act, overturned the U.S. Fish and Wildlife Service’s successful prosecution of an oil company for the deaths of ducks in its uncovered wastewater tanks.

Toxic wastewater ponds are a foul mix of water, oil, and industrial waste. It’s not hard to cover them with netting to make them safe for wildlife, and leaving them uncovered is a known invitation to bird deaths: Uncovered pits have killed hundreds of thousands of birds.

Nevertheless, the appeals court said the oil company wasn’t to blame for the dead ducks.

The Migratory Bird Treaty Act, the court held, prohibits only “deliberate acts done directly and intentionally” to kill migratory birds, like hunting and poaching.

The Department of Justice has declined to appeal the 5th Circuit’s decision in the Citgo case. This means companies in Texas, Louisiana and Mississippi — a regional stronghold for oil extraction and production—will not be prosecuted under the Migratory Bird Treaty Act if birds perish at their facilities.

Elsewhere in the country, however, it’s a different story. Other federal appeals courts have recognized the broad language of the Migratory Bird Treaty Act as proof that Congress intended to prohibit not just deliberate acts, but also acts of negligence that predictably kill birds.

That has been the stance of the 10th Circuit Court of Appeals, which includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah. The court held in 2010 that Apollo Energies had violated the Act by leaving uncovered field equipment known to cause bird deaths. The company, the court said, “knew its equipment was a bird trap that could kill.”

The 5th Circuit’s decision allows a variety of corporate practices — building wind turbines along migratory routes, for instance — that could harm huge numbers of birds. All a company has to do is say with a straight face, “We didn’t mean to.”

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This is a dangerous precedent. The Migratory Bird Treaty Act may have a long history, but its current application matters now more than ever, when many bird populations are in decline. And so we are now at an important juncture: If we allow court rulings to erode the Migratory Bird Treaty Act, what protections do birds have from toxic wastewater ponds and other predictable yet solvable threats?

American Bird Conservancy supports the Fish and Wildlife Service’s right to enforce the Act in cases where bird deaths are predictable and companies are on notice.

In the meantime, instead of trying to dismantle an important environmental law, companies should undertake corrective efforts to protect birds.

It’s the right thing to do — and it’s the law.

Darin Schroeder is vice president of Conservation Advocacy at American Bird Conservancy.

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