by Caroline Griffith
U.S. District Judge Valerie Caproni has struck down a Department of the Interior interpretation of the Migratory Bird Treaty Act (MBTA) that sought to ease penalties on accidental or incidental killing of protected birds by the oil and gas industry and construction companies in the course of doing business.
A 2017 memorandum from Interior argued that penalizing the accidental killing of protected birds was counter to the spirit of the MBTA, which it interprets to only apply to the intentional killing of migratory birds. The MBTA was adopted in 1918 and Interior had argued that it was written mainly as a hunting and poaching regulation.
According to Caproni’s judgement, “From the early 1970s until 2017, Interior interpreted the MBTA to prohibit incidental takes and kills, imposing liability for activities and hazards that led to the deaths of protected birds, irrespective of whether the activities targeted birds or were intended to take or kill birds.” She goes on to say, “There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds. Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only “some” kills are prohibited… Even if Congress did not foresee that modern industrial activity would one day threaten protected migratory bird populations, that does not justify disregarding the statute’s unambiguous language.” The judgement has been celebrated by conservation groups across the country.