Congress Urges Interior Dept. To Abandon Reinterpretation of 100-Year-Old Law Protecting Migratory Birds

Congressman Alan Lowenthal (D-CA), today, joined with House colleagues Brian Fitzpatrick (R-PA), Raúl Grijalva (D-AZ), Francis Rooney (R-FL), and 48 other House Members in calling on the administration to abandon proposed regulatory rulemaking reinterpreting a century-old law protecting more than 1,000 species of migratory birds across North America.

Jamie Rappaport Clark, CEO and president of Defenders of Wildlife, said “Thank you to Reps. Alan Lowenthal (D-Calif.), Francis Rooney (R-FL), Brian Fitzpatrick (R-PA) and Raul Grijalva (D-AZ) and their colleagues for their commitment to protecting the nation’s migratory birds.”

Their letter to U.S. Department of the Interior (DOI) Secretary David Bernhardt follows a recent federal ruling that found the administration’s reinterpretation efforts were unlawful. The administration’s reinterpretation of the Migratory Bird Treaty Act (MBTA), based on a 2017 DOI Solicitor’s Opinion, would remove the ability of the U.S. Fish and Wildlife Service (FWS) to mitigate incidental bird deaths due to industrial or commercial activities.

In the bipartisan letter to Secretary Bernhardt, the Members of Congress wrote that the federal court ruling, “…unambiguously found that the legal rationale and the outcome of the [DOI] Solicitor’s Opinion does not align with the law that Congress passed and intended. Congress passed the MBTA, and the United States signed four bilateral migratory bird treaties, in order to broadly protect and conserve our nation’s bird populations. Moving forward with a regulation that continues to avoid and undermine this obligation is not a viable path forward.”

The MBTA has been used for decades to mitigate, through permitting of industrial and commercial activity, incidental bird deaths. Even when these deaths have not been avoided, the MBTA has been a critical tool to invest the penalties toward the recovery of impacted species. The MBTA fines from the Deepwater Horizon oil spill, which killed more than one million birds, resulted in $100 million for wetland restoration to benefit waterfowl and other birds through the North American Wetlands Conservation Act.

The members also point out, “We believe that there is fundamentally a lack of legal and stakeholder support for the current policy. It is not a sustainable position for the law, or for our bird populations. Fortunately, there is a better path forward. We do not have to choose between conservation or regulatory certainty. While we believe that the Fish and Wildlife Service (FWS) has struck a reasonable balance in implementing the law over the decades, FWS can pursue a framework for incidental take that aligns with the conservation intent and language of the MBTA, which provides additional legal certainty for entities.”

Clark said, “Now that the courts have weighed in, Department of the Interior Secretary Bernhardt should drop its illegal attempt to eliminate Migratory Bird Treaty Act protections and, instead, pursue a rulemaking that conserves wildlife while providing regulatory certainty.”

In addition to the 52 Congressional signatories, the letter was also supported by numerous conservation and wildlife groups.