Court Upholds Historical Interpretation of Nation’s Bird Conservation Law

The Southern District of New York upheld a long-standing interpretation of the Migratory Bird Treaty Act (MBTA). A coalition of national environmental groups, including the American Bird Conservancy, Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, National Wildlife Federation filed lawsuits in May 2018 challenging the Department of the Interior’s move to eliminate protections for waterfowl, raptors and songbirds under the MBTA.

In a legal opinion issued December 2017, the Department of the Interior had abruptly reversed decades of government policy and practice—by both Democratic and Republican administrations—on the implementation and enforcement of the MBTA.

The act's prohibition on the killing or “taking” of migratory birds has long been understood to extend to incidental take from industrial activities—meaning unintentional but predictable and avoidable killing. Under the Interior Department’s revised interpretation, the MBTA’s protections would have only applied to activities that purposefully kill birds. Any “incidental” take—no matter how inevitable or devastating the impact on birds—would have been immune from enforcement under the law. 

Jamie Rappaport Clark, former president and CEO, Defenders of Wildlife issued this statement:

“The court’s decision is a ringing victory for conservationists who have fought to sustain the historical interpretation of the Migratory Bird Treaty Act to protect migratory birds from industrial harms. The Department of the Interior’s wrong-head reinterpretation would have left the fate of more than 1,000 species of birds in the hands of industry. At a time when our nation’s migratory birds are under escalating threats, we should be creating a reasonable permit program to ensure effective conservation and compliance, rather than stripping needed protections for birds.”