California Attorney General Xavier Becerra is celebrating a court victory in his lawsuit against the Trump Administration for lessening protections for migratory birds. The Trump Department of the Interior policy change would have allowed businesses that accidentally kill migratory birds to no longer to face criminal prosecution.
“Migratory birds, including the bald eagle, are not only national symbols of freedom and liberty – they are vital for our country’s ecosystem,” said Beccerra. “Today’s decision recognizes the critical importance of protecting our precious wildlife and upholding the rule of law. We hope the Department of the Interior and the U.S. Fish and Wildlife Service learn their lesson and renew their commitment to acting in the best interest of the public.
In 2017, The Trump Interior Department issued an opinion re-interpreting the Migratory Bird Treaty Act to cover only the deliberate killing of birds, reversing long standing policy that companies could be held responsible for accidental killings, like when birds fly into wind towers or power lines or oil spills or contaminated water.
The Interior Department said that people and companies were only liable for deliberate killings of birds, not incidental killings. Birds covered under the Act include eagles, owls, mockingbirds and vultures. Violators can be criminally prosecuted.
Invalidating the Trump policy, United States District Court for the Southern District Judge Valerie Caproni ruled that the Migratory Bird Treaty Act also covered the incidental killing of birds, even though the statute did not explicitly mention such occurrences.
“It is not only a sin to kill a mockingbird, it is also a crime,” Caproni wrote. “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 legal consequence.”
“There is nothing in the text of the [Migratory Bird Treaty Act] that suggests that in order to fall within its prohibition, activity must be directed specifically at birds,” Caproni said. “Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only ‘some’ kills are prohibited.”
However, the Act’s actual text speaks of deliberate and calculated killing, deeming it “unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill” migratory birds or any part, nest, or egg of any such bird.”
But it is, for better or worse, accepted jurisprudence that statutes can cover things not explicitly mentioned. For example, the Supreme Court just ruled that the 1964 Civil Rights Act’s prohibition against discrimination based on sex covers discrimination against gays.
Becerra’s office said in a statement that the broader protections are needed in California so that big business insures bird safety.
“Migratory birds are vital to California’s ecosystem, culture, and economy. Millions of migratory birds, including threatened and endangered species, move through California each year as part of the Pacific Flyway, a migratory superhighway that runs from Alaska to South America.”
“Until recently, Democratic and Republican administrations alike have consistently interpreted the Migratory Bird Treaty Act (MBTA) to require industry to take preventative measures to reduce and mitigate bird mortality”
But by “narrowing the MBTA to only prohibit the intentional killing or capturing of these birds” the Interior Department “attempted to remove incentives for industries to ensure migratory birds are not harmed by their activities.”
Conservation groups and Becerra and other state attorney generals sued over the revamped Trump policy in 2018 in New York federal court.
Announcing to the lawsuit, which contended the new policy was arbitrary and capricious, Beccerra unloaded on the Trump Administration and big business in the hyperbolic manner of an MSNBC anchor.
“Birds such as the bald eagle are not only national symbols of freedom and liberty, they are also vital for our country’s ecosystem and survival,” he said. “This latest reckless action by the Trump Administration threatens one hundred years of international cooperation to protect precious wildlife and ecosystems. The Department of the Interior and the U.S. Fish and Wildlife Service are obligated to act in the best interest of the public at large, not corporate interests.
“The Administration’s utter disregard for the ecosystem it is entrusted to maintain and its incessant crusade to ensure that corporations are not held accountable for their actions is inexcusable,” he continued. “As the Administration fails to fulfill its obligations to the American public, we will continue to hold it accountable.”