Migratory Bird treaty Act in jeopardy with new federal energy act

Kristen Lindquist: Bird Politics

Sat, 05/12/2018 - 11:00pm

Slowly the poplar and maple buds begin to unfurl into achingly green new leaves. Ferns uncoil. Slowly wildflowers emerge from the forest floor: trailing arbutus, spring beauties, Canada mayflowers, pink lady's slippers. 

One by one, and then in growing flocks, the songbirds return: phoebe, blackbird, swallows, then the first warblers, Rose-breasted Grosbeak, Baltimore Oriole, Scarlet Tanager. Great Blue Herons and Snowy Egrets once again grace the marshes. Grouse drumming resounds like a heartbeat in the woods. Hawks soar over the Camden Hills. Our pale world gains color. And music. Lyrical melodies of robins and other thrushes, rollicking tunes of the oriole, and graceful warblings of finches fill the spring air.

We welcome the inevitable renascence each May of our natural world, filling once more with greenery, flowers, and birds. But we also expect it. We are fortunate in this expectation, though we may not realize it: we owe a lot of our experience of spring here in Maine to the Migratory Bird Treaty Act. 

 As we celebrate the Migratory Bird Treaty Act’s 100th anniversary this hugely successful law is now under threat like never before.

The Migratory Bird Treaty Act (MBTA), enacted in 1918, is one of our oldest conservation laws. It was created to implement a treaty with Canada, and later, with Mexico, Japan, and Russia, to protect migratory birds from hunting, poisoning, trafficking, and other harmful activities. 

Under the MBTA it is illegal to kill, hunt, sell, or possess migratory birds, and their nests, eggs, and feathers, without a permit from the US Fish and Wildlife Service (USFWS). This applies to birds killed intentionally, such as when some yahoo at a beach decides to pick-off a pelican. It also applies to birds killed or harmed "incidentally" as a result of activities that may be otherwise legal. These may include oil and gas industry activities or erection of communications towers, power line networks, or wind turbines. Thanks to the MBTA, for example, the United States was able to fine BP $100 million for killing or harming more than one million birds as a result of the devastating Deepwater Horizon oil spill in the Gulf of Mexico five years ago. These funds enable restoration and conservation of vital bird habitat after the disaster. 

In this way the law protects more than 1,000 bird species, most of which are not otherwise protected by the Endangered Species Act, and has been responsible for saving from extinction hundreds of bird species. While enacted too late for the erstwhile Passenger Pigeon, the law did save the Snowy Egret, a favorite target of plume hunters. It also stopped other thoughtless activities that were impacting bird populations, such as the rampant shooting of hawks, gulls, and other birds for sport or perceived threats to livestock, fisheries, or crops, mass market hunting of dozens of songbird and sandpiper species considered edible, and nest raiding by egg collectors. The MBTA was enacted so long ago that we don't even think about doing many of these things. Those trigger happy traditions have (mostly) fallen by the wayside. 

However, with great irony, as we celebrate the MBTA's 100th anniversary this hugely successful law is now under threat like never before. In December 2017 the Department of the Interior (DOI) quietly released a statement of legal opinion radically reinterpreting how the MBTA is to be implemented and enforced going forward. 

According to this DOI statement, now, unless you intend to deliberately harm or kill a bird, the government will no longer penalize you under the MBTA for doing so. Any incidental harm to a bird from power lines, cell towers, oil waste pits, etc. is acceptable—as long as you didn't directly intend to harm the bird with your actions. It doesn't matter if you didn't make any effort to mitigate the potential for harm, or how many birds you kill. If you burn down a barn and accidentally kill a family of owls inside, no problem. If there's another big oil spill like Deep Horizon, the recovery work and habitat restoration will not be funded this time by corporate fines under the MBTA, because the company responsible for such a large-scale disaster didn't mean to kill thousands (or millions) of birds! 

This drastic reinterpretation completely undercuts a highly effective, 100-year-old law, the law protecting our birds. And to make matters worse, Wyoming Representative Liz Cheney has proposed, in the House's SECURE American Energy Act (HR 4239), to codify and make permanent this drastic reinterpretation of the MBTA. If this passes, all migratory birds, which already run a tremendous gauntlet of habitat loss, cats, windows, disorienting light pollution, and bad weather every time they move from one place to another, are at an exponentially increased risk. And the last resort for already stressed populations is the Endangered Species Act, also under threat by current legislation (don't get me started). 

In response to this new interpretation of the MBTA, 17 former DOI officials from both sides of the aisle wrote a letter to the DOI that calls birds literal "canaries in a coal mine," equating the health of our birds with the health of our world. Underscoring the DOI's need for further consideration of the full implications of their new interpretation, the letter declares: "All the past administrations for which we have worked have struck a balance and worked diligently and in good faith with industries that had significant impacts on birds... It can be done. In fact, it has been done... Your new interpretation needlessly undermines a history of great progress, undermines the effectiveness of the migratory bird treaties, and diminishes US leadership." 

At this point in history the intrinsic welfare of our birds should be above and beyond politics. I certainly never thought I'd be living in a time when the idea of another "Silent Spring" was this close to being a reality. And while their singing voices are lovely, the birds can't speak for themselves. If you enjoy birds, if you look forward to their return each spring, please consider contacting your representative to oppose HR 4239. And don't forget to put out some oranges for the orioles!



Kristen LindquistKristen Lindquist is an amateur naturalist and published poet who lives in her hometown of Camden.

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