In his article “Dying For A Solution: Incidental Taking Under The Migratory Bird Treaty Act,” published in the most recent issue of the William and Mary Environmental Law and Policy Review, Ogden argues that USFWS’s reliance on prosecutorial discretion as its main MBTA enforcement strategy has resulted in widespread unpunished violations of the law, resulting in many bird deaths.
Ogden, an adjunct faculty member at the University of Colorado Law School, points out the conservation landscape has shifted since the MBTA was signed into law in 1918. (An earlier version of the law first made it onto the books two years earlier.) When it was first passed, it was unregulated hunting of songbirds that had provoked conservationists’ concern. The law was worded as an unambiguous prohibition on harming birds for that reason.
In the decades since, though, the threat from hunting has waned dramatically for most of the birds protected by the MBTA. Protected birds are much more likely to face unintentional injury and death caused by human activities: collisions with windows and towers, predation by cats introduced into the landscape by people, and exposure to toxic substances make up a much larger percentage of MBTA violations than was true in 1918….
USFWS’s approach to this shift has been to allow its prosecutors discretion over which violators to pursue, and to use the possibility of being prosecuted as a stick to persuade industry to comply with voluntary bird protection guidelines.
But Ogden charges that that carrot-and-stick approach hasn’t worked, saying that the policy has instead resulted in “uneven enforcement of the MBTA’s prohibitions, legal uncertainty for potential violators, lack of universal compliance with the voluntary guidelines, and steadily escalating bird deaths.” Ogden further says that said prosecutorial discretion gives the impression that certain industries are getting off easy, with the main example being the nation’s burgeoning wind power generation sector.…
What’s the alternative? Ogden suggests that updating the MBTA in Congress to reflect newer threats to birds would help. Replacing the act’s mandated criminal penalties with civil penalties would better reflect the likelihood that it’s corporations rather than individuals who mainly make up the body of MBTA violators these days, and would relieve USFWS of some of the due process concerns that inhibit enforcement. Adding a standard, nationwide protocol for incidental take permits would allow greater consistency for both USFWS and industry, especially the growing wind sector.
Ogden also suggests adding a “citizen suit” provision to MBTA similar to those in the Endangered Species Act. That would allow members of the public to file suit either to block a project that would violate the law or to force USFWS and other agencies to take action to enforce it.
(Read more at ReWild | KCET)
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