Action – Write a comment before 11:59 pm EST tonight to stop the Trump Administration to allow killing birds “unintentionally.
Write against a proposal that would allow the fossil fuel industry to avoid corporate penalties for their lazy and destructive practices that kill millions of our birds every day.
You know that kid… that one that always analyzed the rules, looking for the technicality that would let him win the game or get himself out of trouble?
Well, that kid grew up and is now working for the Trump administration. Daniel Jorjani, a top lawyer of the US Fish and and Wildlife Service (FWS) is using a handful of dictionary definitions to change the intent of the Migratory Bird Treaty Act (MBTA), making killing birds legal, if it was unintentional.
For over a century, the MBTA has made it illegal to pursue, hunt, shoot, wound, kill, trap, capture, or collect migratory birds or their eggs or nests—or attempt to do so—without a permit. For the past half-century, the government’s position was that the law prohibited “incidental take,” or the inadvertent but often predictable killing of birds, usually through industrial activities. Though rarely used, that legal authority helped convince industries to adopt bird-saving practices and technologies.
But in late 2017, Jorjani issued a memorandum stating that the FWS—the agency in charge of implementing the MBTA—would no longer enforce incidental take.
The proposal you need to comment on today is to stop this from becoming permanent.
Here’s the Mr. Jorjani’s word game – He takes this line – “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird, [or] any part, nest, or egg of any such bird.” and then painstakingly looks up each verb’s dictionary definition (really!), and determines that they all indicate “deliberate action” specifically directed at achieving a goal,” except for “kill” and “take” which could refer to “active or passive conduct.”
Referring to game rules he has just made up in his head (and a source that has nothing to do with this issue), he has declared that all verb types need to match, and because there all more “active” verbs than “passive“, therefore all verbs should be “active.”
We would like to refer Mr. Jorjani to the line above his verb game, “by any means or in any manner,” which is really clear. It does not excuse companies, who, in the course of doing business, create situations well known to kill birds, while paying no attention to the consequences.
These bird-killing traps are well known – uncovered oil waste pits kill up to 1 million birds each year and electric wires spaced too close for birds to safely fly through kill 8 – 57 million birds by collision and – 0.9 – 11.6 million birds by electrocution. In fact, because these issues are so well documented, one could argue with Mr. Jorjani, that creating these traps is now a deliberate intent to kill birds.
Which industry hates this rule the most? The fossil-fuel industry, of course. Not content to just muck up our air and water, they want to kill our birds with impunity as well, calling the current incidental take policy an unnecessary burden to their grim business. They have repeatedly urged the federal government to limit the MBTA’s reach. The FWS press release announcing the proposed rule quoted several industry representatives, including Western Energy Alliance President Kathleen Sgamma. “The Alliance is particularly supportive of this rule, as MBTA prosecution had been targeted at oil and natural gas companies even for low numbers of common birds deaths, while other industries went unscathed for much greater numbers, with some even being allowed to kill threatened and endangered species.”
Without accountability, Jorjani’s word game would likely result in less responsibility on the part of industry operating in and around the habitats or flight paths of these birds. Under current regulations, British Petroleum paid $100 million in fines for the loss of over a million birds during the Deepwater Horizon oil spill. With no penalties at all, companies are unlikely to behave responsibly.
CA has already said “Are you kidding?” and passed a law holding companies for incidental take.
Legislation has been introduced in Congress to ensure that the MBTA applies to the incidental take of all migratory birds protected by the law. The Migratory Bird Protection Act of 2020 (H.R. 5552) has been approved by the House Natural Resources Committee and is awaiting a vote on the House floor. The Wildlife Society, along with over 100 other organizations, signed a letter to committee leadership supporting the legislation.
“The Migratory Bird Protection Act presents a major opportunity to secure bird protections and safeguard the law,” the letter read. “The bill reaffirms longstanding protections for birds from industrial hazards, which until this administration had been applied consistently for decades.”
Is this all important? Yes. Audubon cited recent research estimating that North America has lost more than a quarter of its bird population in the past 50 years—some 3 billion birds in all. Wild bird populations are coming under increasing pressure from pesticides, habitat loss and climate disruptions. Protections should be strengthened, not weakened.
According to the summary of a 2019 report released by the Cornell University Laboratory of Ornithology, “Cumulative loss of nearly three billion birds since 1970, across most North American biomes, signals a pervasive and ongoing avifaunal crisis.” Further, according to the report, “A total of 419 migratory species experienced a net loss of 2.5 billion individuals. Shorebirds, most of which migrate long distances to winter along coasts throughout the hemisphere, are experiencing consistent, steep population loss. Population loss is not restricted to rare and threatened species, but includes many widespread and common species that may be disproportionately influential components of food webs and ecosystem function.”
- Explainer: What’s At Stake In The 2020 Rollback Of Migratory Bird Treaty Act Protections? (All about birds).
- USFWS proposes new migratory bird rule (wildlife society)
- New Rule Severely Weakens Migratory Bird Treaty Act (American Bird Conservancy)
- Trump administration proposes rollbacks in protections for migratory birds (Changing America)