collapse

Advertisement


Poll

Should companies be liable for bird kills?

Yes
No

Author Topic: Dept. of Interior Says Companies No Longer Liable for Bird Kills  (Read 1576 times)

Offline bigtex

  • Non-Hunting Topics
  • Trade Count: (0)
  • Explorer
  • ******
  • Join Date: Dec 2009
  • Posts: 10277
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 & Covid-19 Topics
  • Trade Count: (0)
  • Scout
  • ****
  • Join Date: Dec 2016
  • Posts: 321
  • 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.

Online Lucky1

  • Political & Covid-19 Topics
  • Trade Count: (+1)
  • Frontiersman
  • *****
  • Join Date: Jan 2014
  • Posts: 3858
  • Location: Kelso
  • Groups: NRA. GOP
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.
Socialism
Is a philosophy of failure, the creed of ignorance, and the gospel of envy. It’s inherent value is the equal sharing of misery. - Winston Churchill

Offline KFhunter

  • Non-Hunting Topics
  • Trade Count: (0)
  • Legend
  • ******
  • Join Date: Jan 2011
  • Posts: 34514
  • Location: NE Corner
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)
  • Explorer
  • ******
  • Join Date: Dec 2009
  • Posts: 10277
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 & Covid-19 Topics
  • Trade Count: (0)
  • Scout
  • ****
  • Join Date: Dec 2016
  • Posts: 321
  • 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)
  • Explorer
  • ******
  • Join Date: Dec 2009
  • Posts: 10277
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

  • Trade Count: (+8)
  • Frontiersman
  • *****
  • Join Date: Jul 2007
  • Posts: 4748
  • Location: Olympia, 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:

Offline Tbar

  • Non-Hunting Topics
  • Trade Count: (+26)
  • Frontiersman
  • *****
  • Join Date: Jun 2011
  • Posts: 2889
  • Location: Whatcom county
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: (+42)
  • Old Salt
  • *****
  • Join Date: Jun 2009
  • Posts: 5624
  • Location: Sitka, AK
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."

 


* Advertisement

* Recent Topics

Springer Fishing Opportunity 3/29 & 3/30 by xXLojackXx
[Today at 10:13:39 AM]


Bearpaw Season - Spring 2024 by Machias
[Today at 09:19:44 AM]


SB 5444 signed by Inslee on 03/26 Takes Effect on 06/06/24 by hughjorgan
[Today at 09:03:26 AM]


Walked a cougar down by 2MANY
[Today at 08:56:26 AM]


Springer 2024 Columbia River by WSU
[Today at 08:31:10 AM]


Average by lhrbull
[Today at 07:31:56 AM]


Let’s see your best Washington buck by Pathfinder101
[Today at 07:22:11 AM]


CVA optima V2 LR tapped hole for front sight by Remdawg
[Today at 07:09:22 AM]


Which 12” boat trailer tires? by timberhunter
[Yesterday at 08:22:18 PM]


Lowest power 22 round? by JakeLand
[Yesterday at 08:06:13 PM]


1x scopes vs open sights by JakeLand
[Yesterday at 07:29:35 PM]

SimplePortal 2.3.7 © 2008-2024, SimplePortal