A Major Policy Action Against Birds

In a Christmas gift to industry and business, Daniel Jorjani, counsel to the Department of Interior, has issued a legal opinion that guts the Migratory Bird Treaty Act, (MBTA), which is a law about to celebrate 100 years of bird protection.

Click to access m-37050.pdf

The MBTA is a very broad law, sparingly enforced by the US Fish and Wildlife Service, part of the Department of Interior. Those of us who are involved in trying to protect birds from the multiple threats of human land use and industry, know the law is very rarely applied and prosecutorial discretion is a major brake on its potential bite. I have spoken to former employees of the USFWS who left the agency because of its prosecutorial timidity. The fact is the MBTA is very rarely invoked in prosecution.
However, in his long, eminent lifelong legal career*, Mr. Jorjani has become the brave defender of every cat owner and auto driver in the United States. By arguing that the MBTA makes every pet owner and driver a potential criminal, subject to the whims of prosecutors and officials, he has decided to strictly limit the implementation of the law to only “direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.”
This means he has effectively gutted the MBTA. We know how difficult it is to prove intent, i.e. “affirmative, purposeful action.” Every builder, developer, bulldozer operator and drone-flyer must be cheering today. In order to avoid any penalty for killing birds, mowing their grassland nests, or otherwise harming or harrassing them, all the people have to do is say “I didn’t mean to. I was doing something else.” In a strange twist, the dog owner whose pet starts chasing an endangered or threatened species might also use the same excuse. I fear for our Snowy Plovers. The concept of “incidental take” has been taken off the books by administrative action. The current administration has shown its disregard for wildlife.

*You may be interested in Mr. Jorjani’s background and career. Go to https://departmentofinfluence.org/person/daniel-jorjani/