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Expert: There's a Problem With Fish and Wildlife's Enforcement of Bird Law

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Birds surround a Chinese wind turbine | Photo: Changhua Coast Conservation Action/Flickr/Creative Commons License

There's a problem with the way the U.S. Fish and Wildlife Service enforces one of the nation's oldest environmental laws, according to a new article in a leading East Coast law review journal.

The Migratory Bird Treaty Act (MBTA), passed 96 years ago, makes it illegal to hunt, harm, or kill members of more than 800 listed bird species, and exceptions to that rule are few and far between. Unlike other wildlife protection laws such as the federal Endangered Species Act, MBTA doesn't have a procedure for granting exceptions to those protections.

But USFWS doesn't enforce the law across the board. Instead, the agency relies on the discretion of its in-house law enforcement staff to select which MBTA violations it will pursue. And according to Colorado-based environmental attorney and law professor Andrew Ogden, that selective enforcement of the MBTA not only lets many violators off scot-free, but the agency's lack of public oversight into its enforcement decision-making may violate some of the country's most important environmental laws.

In his article "Dying For A Solution: Incidental Taking Under The Migratory Bird Treaty Act," published in the most recent issue of the William and Mary Environmental Law and Policy Review, Ogden argues that USFWS's reliance on prosecutorial discretion as its main MBTA enforcement strategy has resulted in widespread unpunished violations of the law, resulting in many bird deaths.

Ogden, an adjunct faculty member at the University of Colorado Law School, points out the conservation landscape has shifted since the MBTA was signed into law in 1918. (An earlier version of the law first made it onto the books two years earlier.) When it was first passed, it was unregulated hunting of songbirds that had provoked conservationists' concern. The law was worded as an unambiguous prohibition on harming birds for that reason.

In the decades since, though, the threat from hunting has waned dramatically for most of the birds protected by the MBTA. Protected birds are much more likely to face unintentional injury and death caused by human activities: collisions with windows and towers, predation by cats introduced into the landscape by people, and exposure to toxic substances make up a much larger percentage of MBTA violations than was true in 1918.

When hunters were the biggest immediate threat to birds, enforcement of the MBTA was more straightforward: you cite the hunter. With more of the harm to birds being done inadvertently, enforcement gets more complex. (You can't really issue a citation to everyone with a plate glass window that a bird might have collided with, for instance.)

USFWS's approach to this shift has been to allow its prosecutors discretion over which violators to pursue, and to use the possibility of being prosecuted as a stick to persuade industry to comply with voluntary bird protection guidelines.

But Ogden charges that that carrot-and-stick approach hasn't worked, saying that the policy has instead resulted in "uneven enforcement of the MBTA's prohibitions, legal uncertainty for potential violators, lack of universal compliance with the voluntary guidelines, and steadily escalating bird deaths."

Ogden further says that said prosecutorial discretion gives the impression that certain industries are getting off easy, with the main example being the nation's burgeoning wind power generation sector:

[T]he lack of clear guidelines for many industrial activities, and the failure to bring enforcement actions against wind energy producers when FWS guidelines may have been violated, give the appearance that prosecutorial discretion is being applied unevenly and with the possible intention of favoring a specific industry.

The article puts most of its focus on wind power, as that's an area where USFWS has developed its most prominent set of voluntary guidelines.

Ogden also suggests USFWS's MBTA enforcement policy may be violating the National Environmental Policy Act, which requires rigorous analysis of agency actions and their effect on the environment, while providing opportunities for public review and comment.

(T)he practice of using prosecutorial discretion may constitute a violation of the National Environmental Policy Act ("NEPA"), which requires federal agencies to conduct an environmental review of "major Federal actions significantly affecting the quality of the human environment." A failure to comply with NEPA, if applicable, would circumvent the statute's primary purpose of requiring all federal agencies to take a "hard look" at the environmental consequences of their actions.

Were the public comment provisions of NEPA to be implemented in USFWS' enforcement of MBTA, it might have far-reaching effects. Instead of having a set public policy, says Ogden, USFWS enforces MBTA through agency regulations and permitting, some of which are not particularly accessible to the public. One set of permits USFWS granted to take protected birds near east coast airports was only uncovered as a result of a Freedom of Information Act request, for instance, despite the fact that the permits were a matter of flight safety and would likely have been relatively uncontroversial.

What's the alternative? Ogden suggests that updating the MBTA in Congress to reflect newer threats to birds would help. Replacing the act's mandated criminal penalties with civil penalties would better reflect the likelihood that it's corporations rather than individuals who mainly make up the body of MBTA violators these days, and would relieve USFWS of some of the due process concerns that inhibit enforcement. Adding a standard, nationwide protocol for incidental take permits would allow greater consistency for both USFWS and industry, especially the growing wind sector.

Ogden also suggests adding a "citizen suit" provision to MBTA similar to those in the Endangered Species Act. That would allow members of the public to file suit either to block a project that would violate the law or to force USFWS and other agencies to take action to enforce it.

According to Ogden's survey of the scientific literature on bird mortality in the U.S., 600 million birds a year fall victim to mortality caused by humans each year. That's between three and six percent of the nation's breeding bird population, killed each year. A very large percentage of those deaths may constitute individual violations of the MBTA. USFWS can hardly be expected to prosecute every violation of a law that's broken millions of times a year, but bird supporters, scientists, and the public can at least have a conversation about how to make the law more effective.

With at least three percent of the country's breeding birds dying from unnatural causes each year, that conversation ought to be a high priority.

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