By John McFerrin

            The outgoing administration has taken one step closer to a major policy change that would imperil migratory birds.

Background

The Migratory Bird Treaty Act is the United States’ effort to implement a 1916 treaty between the United States, Mexico, and Great Britain (agreeing on behalf of Canada) to protect birds that migrate among the three countries.  The treaty was later expanded to include Russia and Japan.  It prohibits pursuing, hunting, taking, capturing, killing, or attempting to do the same migratory birds, their nests, or their eggs. 

            For a century everybody–agencies, the birds, the public, everybody—assumed that the Migratory Bird Treaty Act protected birds from all killing, whether specifically intended or not.  Going out and intentionally killing a bird was, of course, prohibited.  Doing something that killed migratory birds, even when killing the birds was not the specific goal of the activity, was also prohibited.  

            In 2017 the new administration set out to change this.  In late 2017 a lawyer for the Department of the Interior issued an opinion which said that the Act only prohibited killing of migratory birds if the killing was the purpose of the activity.  If the birds just happened to get in the way of another activity, that was just their bad luck.  The Act did not protect them.  Under the new interpretation, taking a gun and blazing away at migratory birds would still be illegal.  If an oil company left its waste pit uncovered and migratory birds landed there and died, the Act was irrelevant.

            Legal opinions can change; regulations can change also but the process is much more difficult.  In March, 2020, the Department of the Interior proposed a regulation that would put in place the interpretation that the Act only protected birds from intentional killing.  For more about this, see the April, 2020, issue of The Highlands Voice.

What just happened

            The road to a new regulation can be a long one.  The day after Thanksgiving the Fish and Wildlife Service (a branch of the Department of the Interior) issued a final Environment Impact Statement.  In it, it recommended that the Department adopt the less protective rule, the one that restricts the Migratory Bird Treaty Act to intentional killings.

This is the final step on the road to a new regulation.  It clears the way for a new regulation locking in the new interpretation by the end of December.

A new administration could change the regulation, returning to the historical interpretation of the Act. That the regulation became final makes such a change much more difficult and time consuming.

A major beneficiary of the new interpretation is the oil industry.  Its drilling pits are not designed to kill birds but, left uncovered, they can incidentally do so.