Faux Outrage Over Migratory Bird Treaty Demonstrates Fractivist Duplicity

Greg Walcher President, Natural Resources Group

Fractivists out to kill the oil and gas industry will use any tactic available to do so, as their demagoguery on the Migratory Bird Treaty shows.

How we long for the good old days! That’s the tone of some environmental industry leaders who are screaming bloody murder (literally, not figuratively) about Department of the Interior actions under President Trump. The Department’s re-interpretation of the Migratory Bird Treaty Act is a case in point.

One Washington Post writer carped that “cruelty without consequence” is at “the heart of the Trump era.” The new rule, she wrote, is “harmful to the weak … but also to the strong, who in the exercise of cruelty become less humane, less human.”

To be clear, for these advocates, the “good old days” under one specific rule were from January 10 to February 6, 2017. That is how long an Obama rule from the Department’s lawyer was in effect: 27 days.

“The Good Old Days”

President Obama’s Interior Department Solicitor General had written something called “Opinion M-37041,” which radically changed the way federal officials were to enforce the migratory bird law. Issued just ten days before the Obama Administration ended, it was suspended less than a month later, pending review by the new Trump Administration.

That review, completed earlier this year, found that Opinion M-37041 was inconsistent with the law.

The opinion needed review, because M-37041 presumed that all killing of all migratory birds in all places at all times was illegal, and could result in fines or even jail. It no longer mattered whether birds were killed accidentally or intentionally, by negligence or through no fault. It no longer mattered whether birds inadvertently died as a result of entirely legal activity, or if they died from their own poor navigation skills by flying into man-made structures. Businesses that built such structures could be fined anyway.

The law was never intended to be used that way. But that interpretation had a clear purpose for environmental activists who dominated the Obama Interior Department. Migratory birds could be used as a weapon in their ongoing battle against coal and metals mining, oil and gas exploration and production, fossil fuel electricity generation, and even ranching and other despised industries. Meanwhile officials could grant waivers to their powerful friends in the wind and solar industries.

Thus, administrators could fine industries they disliked up to $15,000 per bird – but look away when wind generators chopped up eagles, or solar panels in the Mohave Desert fried birds in mid-air.

In fact, the Audubon Society says, 90% of all prosecutions under the Migratory Bird Treaty Act had been against oil companies, though nobody ever claimed they cause anywhere near 90% of all bird deaths. Indeed, a 2011 million-dollar, 45-day helicopter search for dead birds across North Dakota oil fields by the Fish & Wildlife Service found only 28 mallard ducks, flycatchers and other common birds that were inadvertently killed when they landed in uncovered oilfield waste pits.

Ironically, the Post illustrated its “sky is falling” column with a Gerald Herbert (AP) photo of an oil-soaked bird – but his picture was taken during the Obama era. By definition then, the picture had nothing to do with the issue of reversing M-37041 by the current Administration.

By contrast, studies by wildlife biologists have concluded that US wind turbines are killing hundreds of thousands – and some experts say millions – of raptors and other birds every year, along with numerous bats. Many of these creatures are threatened or endangered, or have been made so by the wind turbines. And yet few environmentalists ever voiced concerns about those deaths.

All the current Administration did was withdraw Opinion M-37041, and return to the previous interpretation, which allowed the use of common sense in determining whether negligence resulted in preventable bird deaths. The text of the law itself prohibits “pursuing, hunting, taking, capturing, killing, or attempting to do the same” – meaning actions whose purpose is taking or killing migratory birds, their nests, or their eggs. It does not criminalize accidental deaths that happen in the course of otherwise legal and productive activity.

The outcry from some eco-activists has been over the top. They wail that the “new” ruling (which merely reinstates the original understanding) will lead to wanton destruction of wildlife. “So many more birds will die now,” the Post writer asserted. Officials will simply no longer care about destruction of our feathered friends.

Under that twisted reasoning, Woodrow Wilson didn’t care about birds, since he signed the Migratory Bird Treaty Act into law in 1918. Franklin Roosevelt didn’t care about birds, nor did Ike, Kennedy or even Nixon, who signed the Endangered Species Act into law. Jimmy Carter didn’t care, nor Bill Clinton and Al Gore. None of them applied Opinion M-37041 reasoning to the law.

It was selective enforcement by the Obama Administration that resulted in conflicting judicial rulings. Previous Administrations all understood the difference between birds dying accidentally or on purpose.

That distinction matters, because birds accidentally die all the time. In fact, a study of albatrosses in the Pacific suggests that the life span of many birds is actually unknown, because they almost always die of unnatural causes. One analysis said as many as six billion birds die in the USA every year by flying into things – houses, office buildings, power lines and other structures – or are killed by animals, especially cats. Does that make every cat or home owner a criminal?

In judging the inhumanity of our society by the way we treat birds, the Washington Post columnist condescendingly pointed out that “people are a part of the natural world, not distinct from it.” No kidding.

Day-to-day human activities affect our environment in numerous ways, sometimes for the better, occasionally for the worse. That doesn’t mean someone must be punished every time a bird dies.

Most of us abhor deliberate animal cruelty. That’s why it is a crime, and accidents are not. It’s nice to see our government bringing a little common sense back to our laws and regulations. That shouldn’t be a crime either.