By Karen Sullivan
A new interpretation of a century-old law meant to protect birds would not only leave more birds dead, it would also add to the number of endangered species, according to the Department of the Interior. One of the country’s oldest environmental laws—the Migratory Bird Treaty Act of 1918—is being reinterpreted by the Trump Administration, which published a legal opinion that it’s no longer illegal to kill migratory birds, as long as it isn’t “on purpose.” They seek to codify this into regulation, and the public has until July 20 to comment. You can read the Draft Environmental Impact Statement (EIS) here.
What are the implications for the Olympic Peninsula? I probably don’t need to explain to readers of Rainshadow Journal how hugely important birds are to ecosystems and to our own well-being. With at least a billion birds migrating each year along the Pacific Flyway, our region is awash in birding hotspots for tourists and nature enthusiasts.
In fact, the Great Washington State Birding Trail has an Olympic Loop that traverses multiple ecosystems with 54 suggested birding stops that include Olympic National Park, four national wildlife refuges, several state and local parks, and the natural and cultural history of six Native American Tribes. On this loop alone you can see 200 of the 400 species found on the north Olympic Peninsula.
But if this new legal opinion and its proposed rule are adopted, you can expect to see fewer birds.
Most people know that rollbacks of environmental and public health protections are under way, but many may not realize the sheer scale—more than eighty so far. Many rollbacks disproportionately affect minorities and low-income communities.
What are the consequences of this one? The Migratory Bird Treaty Act has long imposed strict criminal liability for “taking” protected birds, meaning harming or killing them. This can happen in the daily operations of industries such as electric utilities, oil and gas operations, communication towers, chemical spills, bridgework, artificial lighting, and renewable energy activities, but voluntary best practices like lighting on communications towers or netting over oil or cyanide waste pits have greatly reduced that toll. These measures, however remain voluntary, and the oil industry alone still kills 40 million birds per year.
Under the proposed regulation, the next Deepwater Horizon or Exxon Valdez oil spill would carry no corporate environmental liability for killing even a million birds in one incident. It would also mean that best practices to avoid unnecessary bird deaths would probably be abandoned as corporations come to realize that they won’t be held legally liable. In fact, the Department of the Interior openly states that it expects this result, as well as more additions to the endangered species list.
In Washington’s rich marine waters, common murres forage for fish and nest on sea stacks, ledges and flat-topped islands in colonies so dense that incubating adults are feather-to-feather on both sides. They winter in Puget Sound, and their guttural calls are best described as “nature’s laugh track.”
In Alaska, murres were the species most affected by the Exxon Valdez oil spill; hundreds of thousands died. If the offending party does not have to pay for the cleanup, then lawyers could argue that such spills are the normal cost of doing business, leading us to the sad irony of a once-abundant species named “common” becoming rare.
Migrating birds need good habitat for wintering, for nesting, and for stops along the migration route. What happens to a bird anywhere along its migration route affects the number of birds we see on the Olympic Peninsula. And since this law encompasses treaties with Mexico and Canada to protect birds, our government’s attempt to reinterpret the law is likely to have international effects, too.
To justify it, the Department wrote in its EIS that birds are dirty, carry disease, eat too much seed, and cause airplane accidents. Therefore, goes the logic, the world would be better off with fewer birds, and, by implication, more unregulated industrial infrastructure.
Basic obligations of public service are encoded in federal law, one of which says, “Employees shall act impartially and not give preferential treatment to any private organization or individual.” In announcing this proposed rule, the Department took the unprecedented step of listing 28 endorsements from some of the nation’s largest industry lobby groups, many of which are funded by Exxon and the Koch Bros.
Another prohibition forbids an agency to share nonpublic knowledge with outside interests, which begs the question: how did those lobby groups get their endorsements in before the public ever saw the proposed rule? Yet another prohibition forbids creating even the appearance of breaking the law.
Back in March, along with nine other retired senior federal employees, I wrote to the Inspector General asking that these procedural irregularities be investigated. Our letter disclosed that we were aware of several Fish and Wildlife Service biologists who quietly complained about being pressured to provide misleading information to the public. The Inspector General’s office wrote back saying that unless we provided them with the biologists’ names, no aspects of our complaint would be investigated.
On May 8 we sent a second letter, this time narrowing our focus to legal inconsistencies that did not include the concerns of the biologists, but in the weeks since then, there has been no reply from the Inspector General except for an acknowledgement of receipt.
A federal agency charged by Congress to administer a law cannot restrict, amend, repeal, expand, or render it inoperable without Congressional approval—in other words, an act of Congress. Lawsuits have been filed by Attorneys General from 8 states plus six major environmental groups, including Audubon, Defenders of Wildlife and the American Bird Conservancy. But public comments are needed to support the pushback.
The comment period for this proposed rule is open until July 20, and your comments will become part of the administrative record—a fancy term for the pile of public evidence demonstrating public opinion. So far, nearly 50,000 comments have been filed. Your comments will be read, counted, and the “substantive” ones will be separated from the ones that merely say, “I object” without supporting evidence. I wrote a detailed comment letter on behalf of a local organization that anyone is welcome to adapt or use.
It feels good to participate in a public process when you know that your voice actually counts—and it will, if your comments show why you object, are filed before July 20, and can demonstrate the harm that could be done to you as a bird enthusiast, hiker, hunter, researcher, or merely someone who enjoys watching them at backyard feeders. Even if the agency ignores the bulk of comments, it cannot ignore the courts.
It’s easy to comment, but only if you know where to look. Go to this electronic portal and either type it in (maximum 5,000 characters) or better yet, attach a letter you’ve prepared offline.
Detailed comment letter:
Draft Environmental Impact Statement:
Electronic portal to submit comments: https://www.regulations.gov/comment?D=FWS-HQ-MB-2018-0090-8411
View public comments:
First retired employees’ complaint letter to the Inspector General:
Second retired employees’ complaint letter to the Inspector General: