The Migratory Bird Treaty Act No Longer Criminalizes Incidental Takes

Last week, the Office of the Solicitor in the Department of the Interior issued a legal Opinion concluding that the Migratory Bird Treaty Act does not prohibit the incidental take of migratory birds.  It’s a thorough Opinion.  While I disagree with it on some individual issues and I’m sure many will disagree with its conclusions, I think it should survive judicial review, assuming that a reviewing court can get past the fact that it directly contradicts a prior Opinion of the Interior Department issued less than a year ago.

First, on the fun facts to know and tell front, the Fish & Wildlife Service states that the largest “Human-caused” threat to birds – by almost an order of magnitude – is, you guessed it, cats!  Cats kill an estimated 2.4 billion birds a year.

The next highest on the list is building glass, at 303.5 million bird deaths.  In fairness to the new Opinion, these data do make a telling point.  Even if it’s not reasonable to say that human owners of pet cats can foresee that their cat will kill a migratory bird, it seems reasonable to me to conclude that developers who build buildings with glass can foresee that their building glass will cause migratory bird deaths.  Do we really think that they should be subject to criminal liability?  If not them, then why wind turbine developers (174,000 bird deaths)?  Or utilities that maintain transmission lines (25 million bird deaths)?

From a legal point of view, the only part of the opinion that really concerned me was the argument that statutory language is written in stone and “must be given the meaning [it] had when the text was adopted.”  As I have previously noted, judges have authority to change the landscape of the common law over time.  If the word “take” has in fact changed its common meaning since the statute was enacted more than 100 years ago, shouldn’t the word be given its current interpretation?  (And this isn’t an argument against the Opinion, which I think is reasonable.)

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