A week after this blog post, the Office of the Solicitor issued a memorandum the subject line of which was, “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.” The very first page of the Memorandum ends with the sentence, “Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions.”

Decriminalizing accidental bird killings “this Memorandum finds that, consistent with the text, history, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.”

The Migratory Bird Treaty Act was enacted in 1918 to protect the migratory bird population from overhunting and poaching.

The Federal government has in recent years threatened that anyone involved in an otherwise legal activity may be subject to criminal liability for the unintentional death of any one of over 1,000 species of birds protected under the Act.

But in a 2015 decision by the Fifth Circuit Court of Appeals reversing a misdemeanor conviction after 10 birds were found in two large open-top tanks at a Texas refiner, Federal Judge Edith H. Jones wrote,

If the MBTA prohibits all acts or omissions that “directly” kill birds, where bird deaths are “foreseeable,” then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MBTA.

In an earlier blog post about Federal government enforcement, I wrote, Okay to Kill Eagles with Wind Turbines But Not with Solar Panels or ..

Federal Courts of Appeals have split on whether the Migratory Bird Treaty Act imposes criminal liability on companies and individuals for the inadvertent death of migratory birds resulting from business activities.  Three circuits – the Fifth, Eighth, and Ninth – have held that it does not, limiting taking liability to deliberate acts done directly and intentionally to migratory birds.  Two circuits – the Second and Tenth – have held that it does.  After articulating incidental take was acceptable during its term, on January 10, 2017, in the final days of the Obama Administration, the Office of the Solicitor issued an opinion, in a textualism interpretation, arguing that incidental take is prohibited, which was “suspended and temporarily withdrawn on February 6, 2017” by the current Administration.

Concomitantly, the Fish and Wildlife Service announced it intends to evaluate the general permit issued last year for incidental take under the 1940 Bald and Golden Eagle Protection Act.  When the bald eagle was delisted under the Endangered Species Act, FWS issued a rule establishing a permit program for incidental take under the Eagle Act.  On December 16, 2016, FWS adopted a final rule intended to address some of industry’s concerns regarding that incidental take permit process, but future rulemaking is ongoing; although many believe that a statutory change is appropriate to address the broad breadth of interests.

Despite its title, the World War I era Migratory Bird Treaty Act is a domestic law (not a treaty) that affirms the United States’ commitment to four international conventions (with Canada, Japan, Mexico, and Russia) for the protection of a shared migratory bird resource. Each of the conventions protect selected species of birds that are common to both countries. The Act protects migratory birds by governing the taking, killing, possession, transportation, and importation of such birds, their eggs, parts, or nests.

There is now a proposal in Congress to clarify liability under the nearly 100 year old Migratory Bird Treaty Act, reflecting the significant changes over the last century, including the electrification of homes (.. in 1918 less than 30% of American households had electricity), not to mention how energy is produced, transmitted, and distributed.

The discreet amendment to H.R. 4239 offered by Representative Liz Cheney approved by a 20 -14 vote in a markup of the Secure American Energy Act before the House Natural resources Committee, is,

At the end of Title II, add the following new section:

SEC. 207. CLARIFICATION REGARDING LIABILITY UNDER MIGRATORY BIRD TREATY ACT. Section 6 of the Migratory Bird Treaty Act (16 U.S.C. 707) is amended by adding at the end of the following:

(e) This Act shall not be construed to prohibit any activity proscribed by section 2 of this Act that is accidental or incidental to the presence or operation of an otherwise lawful activity.

In a newsletter to her constituents, Congressperson Cheney said the amendment, “clarifies the Migratory Bird Treaty Act to ensure oil and gas operators, wind operators, home-builders, and folks performing every day activities are not held criminally liable for the accidental take of a bird.”

Owners of wind turbines and of solar panel farms have had their modern ‘environmentally friendly’ and legal businesses criminalized under this century old regulatory scheme. It is those environmentalists who are pushing to amend both Acts to exempt from criminal liability a taking, killing, or other harm to a migratory bird that is accidental or incidental to the presence or operation of an otherwise lawful activity.

At first blush environmentalists might think the 32 word Congressional proposal is not a youthquake and while it may be technically correct that the amendment is not a significant cultural change arising from the actions of young people, it is dramatic modernization of a century old law advanced by one of the newest members of Congress (although an influential member). And it is a modern textualism interpretation of this old law that obstructs renewable energy gains by wind turbines and solar panels.

An amendment offered in a Congressional committee mark up of a bill, is a long way from being the law. But nearly all believe that the 100 year old law must be reformed.

This has already sparked a fiery debate, pitting members of the environmental industrial complex against each other seeking to find a balance between this dinosaur law and the incidental take, including that associated with wind turbines. Congress should act to modernize the Migratory Bird Treaty Act making the amendment the law of the land and if it does not, the Solicitor should act reversing the Obama era guidance and decriminalizing accidental bird killings.