Dept. of Interior Says Companies No Longer Liable for Bird Kills

[bigtex]

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.

[olyguy79]

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.

[Lucky1]

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.

[KFhunter]

Other regulatory measures should monitor and regulate this, not specifically as it applies to migratory birds but all incidental killing of wildlife.

[bigtex]

Maybe the MBTA should be changed to reduce penalties for accidental kills.

The minimum fine is $0.... Nobody said they were getting maximum penalties.

[olyguy79]

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? 

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. 

[bigtex]

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? 

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. 

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.

[Antlershed]

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? 

[Tbar]

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?

[Skillet]

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? 

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...