collapse

Poll

Should companies be liable for bird kills?

Yes
No

Author Topic: Dept. of Interior Says Companies No Longer Liable for Bird Kills  (Read 544 times)

Offline bigtex

  • Non-Hunting Topics
  • Trade Count: (0)
  • Old Salt
  • ******
  • Join Date: Dec 2009
  • Posts: 8692
Dept. of Interior Says Companies No Longer Liable for Bird Kills
« on: December 26, 2017, 05:03:23 PM »
For decades courts have battled whether "incidental take" of migratory birds was prohibited under the Migratory Bird Treaty Act. The MBTA protects all migratory birds, and establishes hunting seasons for migratory game birds. The "incidental take" was most commonly applied to businesses, especially energy companies where migratory birds were killed incidental to their operations. Examples of this includes birds falling in oil pits, birds getting whacked by windmills, etc.

The numerous circuit courts of appeals have sided both in favor and against "incidental take" being prohibited under the MBTA. SCOTUS has never ruled on the issues. Prior to Obama leaving office the Department of Interior Solicitor (agency lawyers) published an opinion stating "incidental take" is prohibited under the MBTA. A Solicitor's Opinion is just that, an opinion, it holds weight in court, but courts can rule against it. It's more commonly used as a guide to agency operations. So since the DOI Solicitor said "incidental take" is prohibited under the MBTA USFWS continued investigations of "indidental take."

Last week the DOI Solicitor (now under Pres. Trump) issued a new opinion stating "incidental take" is NOT prohibited under the MBTA. Further stating the MBTA is to regulate hunting and poaching and not "incidental take." So this essentially means power companies are no longer liable for bird kills.

So here is a real life example of the new opinion:

Hunter John Doe is quail hunting, he flushes a bird (thinking it's a quail) and shoots it. It turns out to be a western meadowlark. John Doe can be charged under the MBTA for illegal take of a migratory bird.

ABC Power and Oil company have an uncovered pit and 20 western meadowlarks die after being stuck in the pit. Since this was incidental to business operations, ABC Power and Oil is not liable for the bird kills.

Offline olyguy79

  • Political Topics
  • Trade Count: (0)
  • Scout
  • ****
  • Join Date: Dec 2016
  • Posts: 318
  • Location: Thurston
Re: Dept. of Interior Says Companies No Longer Liable for Bird Kills
« Reply #1 on: December 26, 2017, 05:08:22 PM »
I'm not a fan.

So basically migratory birds are protected from poachers/people but not big business. Doesn't make sense. If it's protected, it should be protected from all.

Offline Lucky1

  • Political Topics
  • Trade Count: (0)
  • Sourdough
  • *****
  • Join Date: Jan 2014
  • Posts: 2318
  • Location: Kelso
  • Groups: NRA. REMF.
Re: Dept. of Interior Says Companies No Longer Liable for Bird Kills
« Reply #2 on: December 26, 2017, 05:16:10 PM »
I think it is a good rule. Government regulation and punitive rules drive up our cost of power and goods and services we use. Every thing we do has some effect on our environment. If you use electricity you are partially responsible for the bird deaths from wind turbines. You think you should be penalized for that? The power is for public good.
If it can be shown that some practice is killing off a species, something proactive should probably be done to change the processes.
Maybe the MBTA should be changed to reduce penalties for accidental kills.

Offline KFhunter

  • Global Moderator
  • Trade Count: (0)
  • Explorer
  • *****
  • Join Date: Jan 2011
  • Posts: 16495
  • Location: The Wedge
  • My posts do not reflect an official opinion of HW
Re: Dept. of Interior Says Companies No Longer Liable for Bird Kills
« Reply #3 on: December 26, 2017, 05:16:17 PM »
Other regulatory measures should monitor and regulate this, not specifically as it applies to migratory birds but all incidental killing of wildlife.

Offline bigtex

  • Non-Hunting Topics
  • Trade Count: (0)
  • Old Salt
  • ******
  • Join Date: Dec 2009
  • Posts: 8692
Re: Dept. of Interior Says Companies No Longer Liable for Bird Kills
« Reply #4 on: December 26, 2017, 05:18:07 PM »
Maybe the MBTA should be changed to reduce penalties for accidental kills.
The minimum fine is $0.... Nobody said they were getting maximum penalties.

Offline olyguy79

  • Political Topics
  • Trade Count: (0)
  • Scout
  • ****
  • Join Date: Dec 2016
  • Posts: 318
  • Location: Thurston
Re: Dept. of Interior Says Companies No Longer Liable for Bird Kills
« Reply #5 on: December 26, 2017, 05:21:19 PM »
Other regulatory measures should monitor and regulate this, not specifically as it applies to migratory birds but all incidental killing of wildlife.
Are you calling for more government regulations?  :chuckle:

In all seriousness though, the only protection I knew of were for migratory birds. I think a big question now will be for eagles which are protected under both the MBTA and Bald & Golden Eagle Act. Time will tell.  :twocents:

Offline bigtex

  • Non-Hunting Topics
  • Trade Count: (0)
  • Old Salt
  • ******
  • Join Date: Dec 2009
  • Posts: 8692
Re: Dept. of Interior Says Companies No Longer Liable for Bird Kills
« Reply #6 on: December 26, 2017, 05:24:24 PM »
Other regulatory measures should monitor and regulate this, not specifically as it applies to migratory birds but all incidental killing of wildlife.
Are you calling for more government regulations?  :chuckle:

In all seriousness though, the only protection I knew of were for migratory birds. I think a big question now will be for eagles which are protected under both the MBTA and Bald & Golden Eagle Act. Time will tell.  :twocents:
The burden of proof is higher under the Bald & Golden Protection Eagle Act than under the MBTA.

Under MBTA the govt. just needs to prove you took a migratory bird.

Under BGEPA the govt. needs to prove you knowingly took the bird.

Offline Antlershed

  • Business Sponsor
  • Trade Count: (+5)
  • Frontiersman
  • *****
  • Join Date: Jul 2007
  • Posts: 4213
  • Location: Tenino, WA
Re: Dept. of Interior Says Companies No Longer Liable for Bird Kills
« Reply #7 on: December 26, 2017, 07:55:42 PM »
I'm not a fan.

So basically migratory birds are protected from poachers/people but not big business. Doesn't make sense. If it's protected, it should be protected from all.
So if a duck flies into a wind turbine, the company should have to pay a fine?  :dunno:
-Brent

Offline Tbar

  • Non-Hunting Topics
  • Trade Count: (+6)
  • Sourdough
  • *****
  • Join Date: Jun 2011
  • Posts: 1777
  • Location: Whatcom county
  • That Boy Ain't Right
Re: Dept. of Interior Says Companies No Longer Liable for Bird Kills
« Reply #8 on: December 26, 2017, 08:15:18 PM »
Doesn't FERC regulate the prices? Also many of the beneficiaries will be foreign owned companies, correct? This will lessen the mitigation requirements (i.e. habitat projects) correct?

Offline Skillet

  • Business Sponsor
  • Trade Count: (+12)
  • Frontiersman
  • *****
  • Join Date: Jun 2009
  • Posts: 4033
  • Location: Sitka / Everett
Re: Dept. of Interior Says Companies No Longer Liable for Bird Kills
« Reply #9 on: December 26, 2017, 09:33:30 PM »
I'm not a fan.

So basically migratory birds are protected from poachers/people but not big business. Doesn't make sense. If it's protected, it should be protected from all.
So if a duck flies into a wind turbine, the company should have to pay a fine?  :dunno:

I highly doubt they ever had to pay a fine for a single duck strike under the existing reg's.  But as a counter hypothetical - If the meadowlarks in bigtex's example die in an open pit of waste, the company shouldn't be asked to mitigate future potential damage?  Cover the pit, deal with the open waste, etc?

This is unnecessary deregulation at the behest of K street.  Just because some regulations are bad, doesn't mean all regulations are bad.  I completely agree that typical bureaucratic red tape is a real impediment to a small business, but there are actual benefits to sportsmen by adhering to the spirit of the MBTA.  This opinion sets a dangerous precedent.  First it's migratory birds, soon it's salmon (covered under the Pacific Salmon Treaty). Hey, those dams shouldn't need to be spilling water at specific times for smolt outmigration, right?  Cause that's just the incidental cost of doing that business...
KABOOM Count - 1

"The ocean is calling, and I must go."

 

* Recent Topics

2018 Sheds. Post them here! by Bango skank
[Today at 02:05:54 AM]


according to steve rinella by RadSav
[Today at 01:58:54 AM]


Treestands and rattling by masonkarr90
[Today at 01:30:03 AM]


Sinlahekin whitetail buck tag by spin05
[Today at 01:13:11 AM]


WTB Marlin 1894C by Bango skank
[Today at 01:00:26 AM]


Incredible moose by fowl smacker
[Yesterday at 11:45:57 PM]


Carport Ribs by black hog
[Yesterday at 11:10:54 PM]


Benchmark barrels by Reidus
[Yesterday at 10:54:10 PM]


Recipe and directions for top shelf smoked salmon with dry brine by The Weazle
[Yesterday at 10:27:00 PM]


blacktail deer pre-rut by fishnfur
[Yesterday at 10:24:09 PM]


First Washington Deer by MountainWalk
[Yesterday at 10:23:16 PM]


Very thankful to have drawn a 2018 Selkirk Bull Moose, by Blacktail135
[Yesterday at 10:08:18 PM]


Blacktail Question by fishnfur
[Yesterday at 09:58:41 PM]


Naches Pass Goat by Blacktail135
[Yesterday at 09:57:02 PM]


2018 Deer, post them here by X-Force
[Yesterday at 09:54:38 PM]


DIY deer feeder by Mallardmasher
[Yesterday at 09:47:25 PM]


Montana 2019 ? by shallowforks
[Yesterday at 08:48:32 PM]


Pic of dandy 8x8 on gold creek station FB page. by gasman
[Yesterday at 08:46:35 PM]


Colockum branched bulls? by shallowforks
[Yesterday at 08:41:04 PM]


WTT AR10 6.5 Creedmoor by steelehead13
[Yesterday at 08:24:01 PM]