Groups concerned about removal of bird "incidental take"

A recent opinion offered by a solicitor for the Secretary of the U.S. Department of the Interior signals the Department's intention to remove penalties for companies found to have killed migratory birds in the course of their routine industrial activities.This could leave oil companies who do not ensure that waterfowl and other shorebirds cannot easily land in waste oil ponds blameless. Or that the responsible parties for deaths caused by wind turbine operators, power line utilities, pesticide applicators, timbering and other high-risk activities that are responsible for high numbers of known bird mortalities receive no consequences.This opinion was reached after examining whether criminal penalties for incidental take was the original intent of the Migratory Bird Treaty Act (MBTA) when it was signed by the U.S. and the United Kingdom (Canada) in 1918 and later Mexico (1936), Japan (1972) and the USSR (1978).The original intent of the MBTA was to protect bird species that were "useful to man," or at least harmless from being commercially exploited for their feathers, eggs or other products.The U.S. Fish and Wildlife Service's working definition of a take was to, "pursue, hunt, shoot, wound, kill, trap, capture or collect or to attempt to pursue, hunt, shoot, wound, kill, trap, capture or collect." Incidental take was not addressed in the MBTA.The application of penalties since the 1970s to oil, gas, mining, timbering and chemical companies by various federal prosecutors and upheld in some individual court circuits have been uneven and unpredictable, with reversal of decisions upon appeal common.In 1995, the MBTA was amended to exclude the threat of prosecution of native aborigine populations in Alaska and Canada for spring harvest of waterfowl and their eggs for sustenance use. Then, in 2002, the U.S. armed forces were given freedom of liability for the taking of migratory birds during the execution of military exercises.As the rule currently applies, the Secretary's opinion was that because it is too vague, that if it was applied vigorously it would make virtually everyone liable for prosecution.Strict liability would require any act that results in a death of a migratory bird species, which number in the thousands, to be a violation, including anyone who hits one with a car, allows their cat to kill one or has a bird fly into a large picture window.So instead, the Secretary has decided to interpret the rule to only apply to direct and affirmative action that reduce migratory birds, their eggs or their nests by killing or capturing them, to human control. In effect, this returns the focus on birds killed by hunters and poachers — as was the original target audience.With the threat of prosecution for actions that may result in incidental killing of migratory birds, the administration feels that it will lead to more companies confidently resuming oil and gas, and mineral and forestry operations.This also would appear to exonerate operators of wind farms for their troublesome numbers of bird mortalities, which are increasing exponentially as the number of turbines increase nationwide. The oft-cited mortality figures being used by government and wind power companies are widening further away from realistic numbers.Furthermore, the previous administration already waived penalties for incidental take of thousands of eagles, showing their preference for renewable energy over even our most iconic wildlife species, while giving lip service about their commitment to bird protection.Already, a long list of former Department of the Interior and U.S. Fish and Wildlife Service employees dating back to the Nixon administration signed a letter addressed to current Department of the Interior Secretary Ryan Zinke.They argue that by using the former interpretation of take into consideration, oil companies began covering their oil waste pits with nets; commercial fishermen took measures to avoid capturing and drowning sea birds in their nets; and wind turbines were sited in a manner to avoid undue collisions with birds.The former public servants maintain that the previous threat of penalties worked to reduce gross negligence by companies who did not appreciate the importance of birds as the "canary in the coal mine" and enjoyed daily by a large segment of citizens as their primary connection to nature.They are eagerly awaiting his response. If the opinion is not reversed, I would expect lawsuits to be introduced by bird conservation organizations to challenge the removal of former incidental take protections.History has shown that very few big companies do the right thing with respect to the environment without the threat of penalties.