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At more than 100 years old, the Migratory Bird Treaty Act is considered the first conservation law in the United States. It protects over 1,000 species of birds from a host of threats, including disruption of nesting sites and illegal trade. Until recently, power companies and other industries could be prosecuted by the federal government for causing egregious bird deaths, even accidentally. Not anymore.

In 2018, the Interior Department issued internal guidelines weakening the Act. And in January, the Department proposed a rule clarifying that only the intentional killing of birds would be prohibited under the act.

This despite recent research that finds a nearly 30% decline in birds from North America – that’s a loss of nearly 3 billion birds – over the past 50 years.

Several states and several conservation organizations challenged the administration’s opinion on the Migratory Bird Treaty Act in federal court.

Our guest for our podcast, Trump on Earth, is Brad Bortner, former chief of the Division of the Migratory Bird Management with U.S. Fish and Wildlife Service, a bureau of the Interior Department. He is one of 17 former directors and high-level appointees from the Fish and Wildlife Service who wrote an amicus brief supporting that legal challenge to the changes.

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Julie Grant: Can you give a little bit of history about the Migratory Bird Treaty Act? Why was it created? 

Brad Bortner: Originally, the Migratory Bird Treaty was signed with Canada in 1916. There was an outcry from the public and from hunters about the rapid declines of not only game birds but also non-game birds. The millinery [hat making] trade, the restaurant trade all resulted in over-harvesting of birds. There was also a growing understanding of the importance of birds in the ecosystem, such as the role in eating insects and helping in agriculture.

So advocates convinced the U.S. government and the Canadian government to sign a treaty recognizing the shared nature of birds in North America. And two years later, Congress passed the Migratory Bird Treaty Act.

JG: Over the years, how did you see it getting used as a way to protect birds? 

BB: Say you were a proponent of a radio tower. You may have a spot in mind. But for some reason, the Fish and Wildlife Service might say, well, that might not be a good place because it’s in the middle of a migratory corridor or it’s next to a very important wetland. There are examples of tall radio towers that killed a thousand birds a night by collisions. On a foggy night, lights disorient them and the birds all crash into a tower. And so what used to happen is the Fish and Wildlife Service would become aware of a project and they’d contact the project developers and say, here are some things that you might want to consider about birds.

If you had a conversation with an industry and they said thanks, but no thanks–they could make that business decision and move on. And that’s when the Fish and Wildlife Service would come back to them and say, ‘you still have a problem here. We’ve warned you about this. We still think there are things that you can do to avoid or minimize. Would you consider altering your project in order to do that?’ And if they said no and migratory birds were documented dying as a result of that, evidence was collected and turned over with a recommendation to prosecute. And through consultation with the Department of Justice and the U.S. Attorney’s Office, they would decide whether to prosecute or not. That’s how the process used to work.

JG: Do we have any idea how many birds are killed each year? 

BB: There’s no real way of coming up with the exact total. But there have been scientific studies that have been published that outline hundreds, if not thousands, if not tens of thousands of birds being killed on an annual basis through a whole variety of industrial sources of mortality.

JG: Before the Trump administration, during your tenure, had any other administration made moves to try to change or weaken the act, or was this the first time you’ve heard this? 

BB: Well, the issue of incidental take (accidental killing of birds) has been on the table since the 1970s and has been litigated in a number of different courts. But the government has struggled with how to implement it and had settled on a policy of what’s called prosecutorial discretion — where our law enforcement agents or biologists would identify where birds are being killed and would notify the companies of the issues, and try to work with them on developing management practices that reduced, minimized or avoided that mortality of birds.

Most of the companies didn’t want to kill birds. But they also wanted to make sure that they had some assurances that they weren’t going to be in violation of the law. So the Fish and Wildlife Service would sit down with them, review their management practices, make some suggestions, and in many cases, the companies would take actions to minimize or avoid that mortality.

There was an attempt during the Obama administration to develop regulations and a permitting program to provide businesses assurances by giving them permits. Those permits would require companies to take some best management practices to avoid mortality or in cases where there was still mortality, there would be permit fees or conservation actions that the companies would take to basically replace the birds or the habitats that were being lost to their activities.

JG: And did that go into effect? 

BB: No. There was a lot of work being put into developing such an approach, but that approach was canceled when the Trump administration took over.

JG: Then in 2017, the Interior Department said previous administrations had interpreted this law too broadly. And so what happened after that? Did that mean businesses immediately started getting a free pass?

BB: Yes, in December of 2017 the administration changed the interpretation to say that incidental take  was no longer covered by the Migratory Bird Treaty Act and took steps to issue guidance to agency personnel to stop investigating cases of mortality in birds like oil or chemical spills. And since there aren’t investigations, it’s hard to tell how many birds are being affected or what the impact has been.

Investigations of incidental take had always been a priority of the Fish and Wildlife Service law enforcement personnel. And up until that opinion, they were actively working on those, no matter what the industry or what the source of mortality was.

Then in January of 2018, 17 former Department of Interior deputy secretaries, assistant secretaries, director of the Fish and Wildlife Service and migratory bird chiefs got together and wrote a letter to (then-Interior Department) Secretary Zinke in response to the legal opinion that we’ve been talking about. The letter said the Department of Interior and the Fish and Wildlife Service can’t conserve migratory birds and can’t meet that mission with that new interpretation of the Migratory Bird Treaty Act. We urged them to reconsider and go back and reinstitute the former legal opinion.

Since that time they’ve proceeded forward, they issued agency guidance to staff. A number of states and other plaintiffs took the federal government to court. A number of those signatories to the original letter filed an amicus brief with the court. An Amicus brief is a friend of the court letter and tried to support and give the judge background about the Migratory Bird Treaty acts, its prior implementation and why the case should be heard. Now two years later, and the plaintiffs have filed for summary judgment in that court case, asking the judge to make a ruling. So the original signatories got together again and filed another amicus brief to give the judge some other perspectives than they were hearing from either the government or from the plaintiffs in the case.

I’ll add that to the signatories to the letter and also to the amicus brief have served under Republican and Democratic administrations going back to 1972. We all felt it was important to urge the administration not go back and change the legal opinion.

JG: The Trump administration in recent weeks said it would go further in its efforts to weaken the Migratory Bird Treaty Act. So not just issuing guidelines to its staff, but it’s now proposed an official rule saying that only the intentional killing of birds would violate the act. The public comment period for that rule runs until March 19th. What would this mean and what’s your view on it? 

BB: In my opinion, it is rule-making too late. They have a foregone conclusion. While I encourage people to comment, I’m not very hopeful that they will take into consideration alternatives or public comments or develop a different approach.

JG: Have you ever taken a public stance like this before? 

BB: I can’t speak for the rest of the signatories, but I can tell you that I have never taken a stance like this before. I worked under every president from President Reagan to President Trump. But I never have even disclosed what political party I voted in. And I wouldn’t know the political affiliation of any of the other signatories either.

Conservation is a cooperative endeavor and all of us benefit from migratory birds and share the responsibilities for their continued survival.

JG: And this time you felt like it was important. Why? 

BB: Well, the Migratory Bird Treaty Act, while I’ve spent 33 years working on it, it’s been around for 100 years. It’s been a living, breathing, evolving conservation pillar of the efforts to conserve natural resources in North America. While I’m an expert in it, I felt like I had a unique understanding of it and that I wanted to share that with the judge and try to reverse course on what I believe is a misinterpretation of the treaty and will ultimately result in the continued decline of America’s natural resources, particularly migratory birds.

When I say it’s 100 years old, it doesn’t mean that it’s some antiquated, outdated law. It’s been kept up over time. The U.S. government sat down with Canada and amended the treaty in 1995. Subsequent to that treaty amendment, the U.S. government and the Canadian government exchanged diplomatic notes, indicating that it was the understanding of both governments that incidental take was covered. In 2002, as part of the war on terror, Congress amended the Migratory Bird Treaty Act to indicate that the U.S. military was exempt from incidental take under the Migratory Bird Treaty Act as they were doing training to defend the country.

JG: Why is it important to have treaties like this for migratory birds with other countries? 

BB: Birds are a shared resource. Whether you have birds breeding in Canada and coming to the United States for the winter or moving on down into Mexico or Central and South America, conservation is a cooperative endeavor and all of us benefit from migratory birds and share the responsibilities for their continued survival.

In 1916, it was pretty innovative to come up with a treaty in order to protect birds or what has become the whole conservation community. As you indicated at the beginning of this, the Migratory Bird Treaty Act, are some of the earliest environmental laws and are foundational to the conservation of natural resources in North America.

JG: Thank you so much. We really appreciate your time. 

BB: I appreciate the opportunity to talk to you about it today and let you know the importance of migratory birds and the importance of the interpretation of the law.

The public comment period for the rule that would define the scope of the Migratory Bird Treaty Act is open until March 19th. More info HERE.