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NY judge invalidates Trump rollback of law protecting birds

August 13, 2020 Associated Press
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A U.S. judge in New York has invalidated rule changes put in place by the Trump administration that scaled back a century-old law protecting most American wild bird species despite warnings that billions of birds could die as a result.

U.S. District Judge Valerie Caproni’s ruling Tuesday criticized the administration’s argument that the Migratory Bird Treaty Act only applied to the intentional killing of birds and not “incidental” killing from industrial activities.

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“It is not only a sin to kill a mockingbird, it is also a crime,” Caproni wrote in her ruling, citing Harper Lee’s “To Kill a Mockingbird.” “That has been the letter of the law for the past century.”

Caproni, who was nominated to the Southern District of New York by President Obama in 2012, disagreed with the Trump administration’s interpretation of the law.

“There is nothing in the text of the [Migratory Bird Treaty Act] that suggests that in order to fall within its prohibition, activity must be directed specifically at birds,” she wrote. “Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only ‘some’ kills are prohibited.”

More than 1,000 species are covered under the law, and the changes have drawn a sharp backlash from organizations that advocate on behalf of an estimated 46 million U.S. birdwatchers.

“The Trump administration’s policy was nothing more than a cruel, bird-killing gift to polluters and we’re elated it has been vacated,” said Noah Greenwald, endangered species director at the Center for Biological Diversity, which was one of the plaintiffs.

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The 1918 migratory bird law came after many U.S. bird populations had been decimated by hunting and poaching — much of it for feathers for women’s hats. It was one of the country’s first major federal environmental laws, enacted just after the conservation movement embodied by President Teddy Roosevelt had emerged as a new force in American politics.

Over the past half-century, as new threats to birds emerged, the law also was applied against companies that failed to prevent foreseeable bird deaths, such as oil companies that did not put netting over toxic waste pits despite warnings from federal officials.

The Trump administration argued the deaths of birds that fly into oil pits, mining sites, telecommunications towers, wind turbines and other hazards should be treated as accidents and should not be subject to prosecution.

The Department of Interior said in a statement that Caproni’s ruling “undermines a common sense interpretation of the law and runs contrary to recent efforts, shared across the political spectrum, to de-criminalize unintentional conduct.”

An Interior legal decision in 2017 already had effectively ended criminal enforcement under the act during Trump’s presidency. Eight states led by New York and numerous conservation groups including the National Audubon Society challenged that decision in federal court.

They argued that birds already were being harmed by the administration’s policies, most notably in the destruction last fall of nesting grounds for 25,000 shorebirds in Virginia to make way for a road and tunnel project. State officials had ended conservation measures for the birds after federal officials advised such measures were voluntary under the new interpretation of the law.

The highest-profile enforcement case brought under the migratory bird act resulted in a $100 million settlement by BP, after the Gulf of Mexico oil spill in 2010 killed about 100,000 birds.

Industry sources kill an estimated 450 million to 1.1 billion birds annually, out of an overall 7.2 billion birds in North America, according to the U.S. Fish and Wildlife Service and recent studies.

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