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Trump admin orders Fish and Wildlife to eliminate fines for killing migratory birds

Snow geese gather in the fields near Freezout Lake. The Trump administration has eliminated penalties for industries that kill migratory birds, thus weakening a law that has protected such birds for a century. (Laura Lundquist/Missoula Current)

In another environmental rollback favoring the oil and gas industry, the Trump administration has eliminated penalties for industries that kill migratory birds, thus weakening a law that has protected such birds for a century.

On Thursday afternoon, the U.S. Fish and Wildlife Service announced it intended to slash enforcement of the 1918 Migratory Bird Treaty Act. The Act makes it illegal to hunt, take, capture or kill birds, nests or eggs without a permit and covers hundreds of species from ducks, geese and swans to meadowlarks, magpies and kingfishers.

For the past 40 years, federal officials have used the law to fine companies up to $15,000 per bird if any died as a result of their operations.

For example, companies would pay when birds would die from illegally applied pesticides, an oil slick, the Berkeley Pit or when killed by turbine blades. British Petroleum was assessed a $100 million fine for the death of an estimated 1 million birds due to the Deepwater Horizon oil spill.

To avoid the fines, companies took precautions like covering oil waste pits, insulating power lines and locating wind farms away from bird migration routes. Even so, up to 64 million birds die on power lines and 500,000 to 1 million die in waste pits every year.

The law had allowed some room for interpretation, so the Obama administration issued a rule reiterating that entities would be prosecuted for killing migratory birds.

But now, under the proposed Trump rule, penalties would kick in only if someone intentionally kills a bird. Few penalties will likely result, because in any given case, a person could claim a death was accidental and the U.S. Fish and Wildlife Service would have to prove intent existed.

The Fish and Wildlife Service said the Endangered Species Act and the Bald and Golden Eagle Protection Act, as well as state laws and regulations, are not affected.

Similar to the recent rollback on the Clean Water Act, the administration had broadcast more than two years ago that the change was coming. In 2017, Daniel Jorjani, a senior Interior Department attorney and former Koch Brothers advisor, issued a legal opinion negating the Obama rule as “too broad.”

So 500 environmental groups were already primed to oppose Thursday’s action.

Jennifer Rokala, Center for Western Priorities executive director, called it a radical interpretation of the law.

Rokala highlighted recordings obtained by the Center on Investigative Reporting where executives of the Independent Petroluem Association of America brag about being able to tell Berhardt how they wanted to eliminate the Migratory Bird Treaty Act penalties.

“Secretary (David) Bernhardt’s former oil industry clients have explicitly asked for this policy change, and now he is delivering. It seems there are no limits to what Bernhardt will do to shred wildlife protections at the behest of drilling and mining companies. Finalizing this proposal would only sign the death warrants of millions of birds across the country,” Rokala said in a statement.

In the aftermath of Jorjani’s opinion, 17 former and current chiefs and directors of the U.S. Fish and Wildlife Service sent a letter to former Interior Secretary Ryan Zinke asking him not to roll back the penalties.

“This is a new, contrived legal standard that creates a huge loophole in the (Migratory Bird Treaty Act), allowing companies to engage in activities that routinely kill migratory birds so long as they were not intending that their operations would ‘render an animal subject to human control.’ Indeed, as your solicitor’s opinion necessarily acknowledged, several district and circuit courts have soundly rejected the narrow reading of the law that your Department is now embracing,” the letter said.

Also, in 2018, the National Wildlife Federation joined several environmental groups that sued the Interior Department to challenge Jorjani’s interpretation.

Meanwhile, federal enforcement has already been reduced, and wildlife officers have refused to investigate bird deaths based on Jorjani’s legal opinion. The USFWS refused to fine Montana Resources and the Atlantic Richfield Company in November 2017 after 3,000 snow geese were poisoned in the water of Butte’s Berkeley Pit. The New York Times reported that the DOI has discouraged local governments and business from taking even simple precautions to protect birds.

“The rule sends an irresponsible — and legally incorrect — signal to industry that common-sense measures to protect birds like the snowy egret, wood duck and greater sandhill crane are no longer needed. We urge the Trump administration to reverse course and restore protections for America’s birds,” said National Wildlife Federation CEO Collin O’Mara in a statement.

Not surprisingly, the Audubon Society was one of the first to criticize the action. It was also the organization that took the lead in the 2018 lawsuit, which is still in the courts.

“The Trump Administration’s Bird Killer Department, formerly known as the Department of the Interior, just gets crueler and more craven every day,” said Audubon president David Yarnold in a statement. “And today they are doubling down despite the fact that America did not elect this administration to kill birds.”

Conservationists bemoan that this rule change comes at a time when recent research by Cornell University documented the loss of 3 billion birds in North America since 1970. Yarnold said his organization’s report shows climate change will put the future of many remaining bird species in doubt; as many as two-thirds of existing birds could disappear.

“For decades, both Republican and Democratic administrations have relied on the Migratory Bird Treaty Act as the primary tool for protecting birds in this country. This mean-spirited rule is pure politics and birds will pay the price,” Yarnold said.

The rule isn’t final yet, but the USFWS indicated it was aiming to complete the process before November. Public comment will be accepted from Feb. 3 to March 19.

“The mission of the U.S. Fish and Wildlife Service is to conserve wildlife and habitats for the continuing benefit of the American people. Bird conservation is an integral part of that mission. We are taking action today to make sure our rules and regulations are clear,”said USFWS director Aurelia Skipwith in a statement. “We look forward to an open and transparent process that will ensure ample opportunity for public input.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.