View From Sapsucker Woods: Storm Clouds Brewing for the Migratory Bird Treaty Act

By John W. Fitzpatrick
March 29, 2018
Caspian Tern by Tim LenzCaspian Tern by Tim Lenz/Macaulay Library.

From the Spring 2018 issue of Living Bird magazine. Subscribe now.

“Hope is the thing with feathers, that perches in the soul” penned Emily Dickinson in 1862, and a bit later, “sore must be the storm, that could abash the little bird that kept so many warm.”

Today a sore storm is brewing and it is time for everyone who cherishes nature to raise our voices, lest hope be dashed. For a hundred years, government leaders of every political persuasion have respected the sanctity of the Migratory Bird Treaty Act. This historic law—based on a joint pledge by President Woodrow Wilson and Great Britain’s King George V, one of the world’s first international environmental agreements—launched a century of enlightenment in wildlife conservation, following a ruthless 19th century of wanton exploitation. The MBTA was among the first signs of hope that humans preferred revering nature over destroying her.

A Northern Harrier at the Hagerman NWR in TX. Photo by Sunshine Girl via Birdshare.A Northern Harrier (center right) flies past oil drills at the Hagerman National Wildlife Refuge in Texas. Photo by Sunshine Girl via Birdshare.

I use this word sanctity advisedly: “the state or quality of being holy, sacred, or saintly” and, “having ultimate importance and inviolability.” Indeed, since its ratification by the U.S. Senate in 1918, the spirit of the MBTA has woven itself across American culture. We cherish the ringing songs of meadowlarks and mockingbirds; we rejoice in robins, bluebirds, catbirds, and wrens as harbingers of spring; we nourish jays, chickadees, and nuthatches that share our backyards. Birds belong in our landscapes, and for a hundred years our government has supported our moral responsibilities to protect them.

On the Friday before a holiday weekend in December, 2017, Daniel H. Jorjani— Principal Deputy Solicitor at the U.S. Department of the Interior—issued a 41-page opinion (M-37050) concluding that “the MBTA’s prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same applies only to direct and affirmative purposeful actions….”

Prior to this opinion, conventional interpretation of the MBTA promoted productive dialog involving industry, environmental groups, and the U.S. Fish and Wildlife Service. Numerous common sense solutions have reduced the incidental, wanton killing of millions of birds by such hazards as open oil waste pits, oil spills, unprotected pesticide residues, unmarked transmission lines, and lethally situated wind farms. Under Jorjani’s new and extremely narrow interpretation, whole industries (e.g., energy, mining, chemical production) are suddenly freed from legal liability even if their actions result in predictable, avoidable, and massive killing of birds. Hope and incentive for dialog and compromise on behalf of birds is abashed by this storm. Not surprisingly, Jorjani’s opinion was hailed by energy companies and advocacy groups, including those for whom he recently worked.

What Can You Do?

The best way to express your opinion about the Migratory Bird Treaty Act is to contact your senators and representatives.

Within weeks of Jorjani’s memo, Interior Secretary Ryan Zinke received a remarkable letter signed by 17 former Interior department leaders who had worked under every U.S. President since Richard Nixon. Their letter emphatically denounced this unprecedented opinion as “a new, contrived legal standard that creates a huge loophole in the MBTA.” They pointed out that the MBTA “has been successfully used to reduce gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm. Your new interpretation needlessly undermines a history of great progress….” First to sign this letter was Lynn Scarlett, who served as Deputy Secretary of the Interior under George W. Bush, and who elaborates on these points in this issue of Living Bird. (Also see additional analysis by the Cornell Lab’s director of conservation science.)

Our Department of the Interior is charged with abating forces that threaten to reduce or eliminate birds in our landscapes. Instead, of late, they are abetting these forces. For every one of us who cherishes the sanctity of bird protection as a bedrock of hope, it is time to raise our voices and gather against this mounting storm.