“This legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970s,” the group wrote in the letter, which was also sent to members of Congress.
Paul Schmidt, assistant director of migratory birds at U.S. Fish and Wildlife Service from 2003 to 2011, said former political appointees for both Republican and Democratic presidents readily signed the letter.
“It’s phenomenal to see this list,” said Schmidt, who started gathering signatures shortly after Interior’s principal deputy solicitor, Daniel Jorjani, issued the legal interpretation three days before Christmas. “There wasn’t any hesitation on anyone’s part. We finalized that letter in short order.”
Signed in 1918, the Migratory Bird Treaty Act (MBTA) is one of the nation’s oldest environmental laws. Passed so the nation complied with treaties it had with Great Britain — countries with which the United States shares migratory birds — the broadly worded law made it illegal to “pursue, hunt, take, [or] capture” any migratory bird “by any means whatever [and] at any time or in any manner.”
In the new solicitor’s opinion, Interior said applying the law “to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 fine for each and every bird injured or killed.”
Under the new interpretation, a company would be in violation of the law only when it is “engaged in an activity the object of which was to render an animal subject to human control.”
“This is a new, contrived legal standard that creates a huge loophole” in the existing act, the letter-writers said, “allowing companies to engage in activities that routinely kill migratory birds so long as they were not intending that their operations would ‘render an animal subject to human control.’ ”
The question of how to define what sort of actions should be grounds for prosecution has vexed previous administrations, and the Fish and Wildlife Service had worked toward the end of Obama’s second term to craft a regulation that would provide more specific permitting guidelines. But that effort failed to come to fruition, and Interior issued a solicitor’s opinion on Jan. 10, 2017, in an effort to lay out some parameters for violations of the law.
Interior did not respond to requests for comment Thursday. But in late December, Interior’s deputy director of communications, Russell Newell, said in an email that the opinion issued just days before President Trump’s inauguration “criminalized all actions that killed migratory birds, whether purposeful or not.”
The new opinion issued Dec. 22, Newell said, “returns to the intent of the law — Interior’s action on the [Migratory Bird Treaty Act] is a victory over the regulatory state.”
The law was prominently wielded by the federal government against major oil companies after spills following the crash of the Exxon Valdez in 1989 and the explosion of the Deepwater Horizon offshore drilling rig in 2010, accidents that each killed hundreds of thousands of birds.
In practice, federal prosecutors tended to bring cases against companies that had failed to take precautionary measures aimed at averting bird deaths. Schmidt, the former Fish and Wildlife Service official who organized the letter, said a motorist striking and killing a bird, for example, “might be a technical violation. But it would be insane to take on a prosecution.”
“Discretion,” he added, “has been successfully used to change corporate behavior to minimize takes” — or, that is, kills. In the letter, Schmidt and the others cite Interior’s work with oil producers to ensure exposed crude oil waste pits were covered with nets as an example of the law being put to good use.
While the law has often been used as leverage in negotiations between government officials and private companies, some prosecutions under the law have stirred controversy. In a 2011 case in North Dakota involving Continental Resources and five other oil companies, Fish and Wildlife asked the U.S. attorney there to press criminal charges because all six firms had been previously ticketed for not installing netting over their oil waste pits. However, a federal judge dismissed the criminal charges against three of the companies the following year, and vacated the settlements that the three other firms had reached with federal authorities.
The Natural Resources Defense Council, which is among the many environmental groups challenging the Trump administration’s environmental rollbacks in court, said it expected to take legal action regarding the Interior’s decision as well.
“The administration has rolled back decades of precedent, and we’re exploring all avenues to challenge the move,” said Katie Umekubo, senior attorney at the organization. “There’s no question there will be legal challenges, given how extreme this new interpretation is.”
Meanwhile, congressional Republicans are working to curtail the law not just through reinterpretation, but by rewriting it. The House Committee on Natural Resources recently adopted an amendment by Rep. Liz Cheney (R-Wyo.) that would abolish incidental take as a legal violation.
The sharply worded rebuke from such a wide range of former Interior officials — which included Republicans such as Lynn Scarlett and Steve Williams, respectively the deputy interior secretary and FWS director for George W. Bush — underscores the chasm between the current administration and its predecessors.
That gap exists at other environmental agencies as well.
Last month, three former administrators of the Environmental Protection Agency under Republican presidents joined with Bill Clinton’s Interior secretary, Bruce Babbitt, in publicly criticizing the proposed opening of an Alaskan gold and copper mine near Bristol Bay’s sockeye salmon fishery. In June, seven former heads of the Energy Department’s energy efficiency and renewables office wrote in protest to proposed budget cuts there.