A coalition of national environmental groups has filed a lawsuit (Case Number: 1: 21-cv-00448) contesting the outgoing government's move to remove longstanding protection for waterfowl, birds of prey and songbirds under the Migratory Birds Treaty Act (MBTA) put. Parties to the litigation include the American Bird Conservancy, the Center for Biological Diversity, Defenders of Wildlife, the National Audubon Society, the National Wildlife Federation, and the Natural Resources Defense Council.
The move challenges a new rule of outgoing administration that severely weakens the essential protection of the MBTA. This rule comes at a time when scientists have been sounding the alarm about the loss of 3 billion North American birds in the past 50 years. This would end enforcement against the "random taking" of birds – the predictable and avoidable killing of birds by industrial practices. The administration is trying to codify this, even though a federal judge struck down this statement last August.
"We urge President-elect Biden to swiftly eliminate this threat to migratory birds and put in place a permit system to reduce preventable mortality," said Steve Holmer, American Bird Conservancy (ABC) vice president of government relations. “Congress can support these efforts by passing the law to protect migratory birds.
Northern Mockingbird, Copyright Glyn Sellors, from the Surfbirds Galleries
"Last fall, a federal court overturned the government's reinterpretation of the Migratory Bird Treaty Act, which ended decades of enforcement and let the industry off the hook to kill birds," said Holmer. "Today's lawsuit challenges a federal rule based on the same bad arguments."
The outgoing government continues to argue that the law only applies to the deliberate killing of birds and not to "accidental" killing by industrial activities – – Activities that kill millions of birds each year, such as oil spills and electric shocks on power lines. This reinterpretation was first introduced in December 2017 by a legal opinion from the Ministry of the Interior.
Valerie Caproni, US District Court judge, citing the killing of a mockingbird, wrote, "If the Home Office has its way, many mockingbirds and other migratory birds that delight people and support ecosystems across the country will be killed without legal consequences." In rejecting the administration's opinion, the court found that the MBTA is making the killing of birds unlawful "in any way or any way" – hence the administration's interpretation is against the plain language of the law.
"Implementation of this rule will result in unnecessary bird killing when many species of birds are in dire need of our help," said ABC President Mike Parr. "It is always our preference to solve problems without complaint, but the vast nature of this rule requires nothing less."