Client Alert

Is it a Crime to Kill a Mockingbird? 
Federal Court Weighs in on the Migratory Bird Treaty Act.

By Clark Morrison and Scott Birkey

The Migratory Bird Treaty Act (MBTA) is one of the nation’s oldest environmental laws.  Passed in 1918, the MBTA was part of an international effort to stop the large-scale slaughter of migratory birds by those seeking to harvest and trade their feathers for commercial purposes, including fashion.  The MBTA now protects well over a thousand avian species, including many that are not rare, threatened or endangered.  The MBTA makes it unlawful at any time, by any means or in any manner, to “pursue, hunt, take, capture, kill” any protected bird or the nest or eggs of any such bird.

Although the MBTA is for the most part directed at actions intended to harm protected birds (e.g., hunting, pursuing, capturing), there has been an ongoing debate as to whether actions not intended to harm birds (e.g., accidental or unintentional kills) are prohibited by the law.  The import of this question has increased significantly over the last decade with the growth of the wind power industry in the United States.

In the early days of the Trump administration, lawyers for the Department of the Interior issued a legal opinion concluding that the MBTA prohibits only acts specifically directed at protected birds (i.e., intentional acts).  Under the so-called “Jorjani” opinion, there would be no liability for bird mortality caused by, for example, spinning turbine blades.  The Jorjani opinion explicitly reversed a legal opinion issued during the closing days of the Obama administration, which had concluded that incidental (i.e., unintentional) take is prohibited by the MBTA.  Both of the legal opinions tried to resolve differences among the federal courts as to this question, each reaching an opposite conclusion. 

In a ruling last week, a federal district court in New York vacated the Jorjani opinion.  In what can be described as a fairly searing decision, the judge opened with the following: 

It is not only a sin to kill a mockingbird, it is also a crime.  That has been the letter of the law for the past century.  But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without consequence.

In ruling against the Trump administration, the court hung its hat on language in the MBTA stating that take “by any means or in any manner” is prohibited.  Given the breadth of this prohibition, according to the court, it does not matter whether the take is intentional or specifically directed at birds.  The court rejected the administration’s argument that this broad interpretation of the MBTA would lead to absurd results (i.e., liability for a housecat killing a blue jay).  The court also rejected the administration’s argument that the legislative history and statutory structure of the MBTA suggest that to “kill” a bird is only prohibited when it is done so in the same manner as other acts under the MBTA (i.e., pursue, hunt, catch, capture, etc.).  

One particularly concerning point for the wind industry is the court’s statement that prohibited acts “plainly” include “building” wind turbines.  That is, without much thought, the court did not distinguish between the construction of a wind turbine and its operation.  Although spinning blades often result in incidental take of birds, the mere construction of a turbine should not normally result in a violation of the MBTA.

Keep in mind that last week’s decision involved only the Trump administration’s interpretation of the MBTA.  There remains a split between the different federal judicial circuits as to the breadth of the MBTA, and that split can only be resolved by the Supreme Court or an act of Congress.  In the Ninth Circuit (which includes California and other western states), a decision known as Seattle Audubon is sometimes cited for the proposition that incidental take is not prohibited by the MBTA.  In its decision last week, however, the New York district court disagreed with this characterization, reasoning that Seattle Audubon addressed only the question of whether habitat modification that leads indirectly to bird deaths is culpable (and not whether unintentional take is prohibited). 

Although the State of California has its own laws that prohibit intentional and unintentional take of most avian species (including those protected under the MBTA), the federal question is nonetheless important to the wind, construction, oil and gas and other industries, which face the prospect of both state and federal enforcement whenever a bird is killed unintentionally.

Cox, Castle & Nicholson LLP is a full service law firm offering comprehensive legal services to the business community and specialized services for the real estate and construction industries.  Reproduction is prohibited without written permission from the publisher.  The publisher is not engaged in rendering legal, investment, business or insurance counseling through this publication.  No statement is to be construed as legal, investment, business or insurance advice.

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