A.G. Underwood Leads Suit Against Trump Administration For Abandoning Longstanding Protections For Migratory Birds 

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FOR IMMEDIATE RELEASE
September 5, 2018

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A.G. UNDERWOOD LEADS SUIT AGAINST TRUMP ADMINISTRATION FOR ABANDONING LONGSTANDING PROTECTIONS FOR MIGRATORY BIRDS 

8 AGs Seek to Reverse “Arbitrary, Capricious, and Unlawful” Interior Decision to Gut Migratory Bird Treaty Act – Which Protects Over 300 Migratory Bird Species that are Critical to New York’s Ecology, Science, and Economy 

NEW YORK – Attorney General Barbara D. Underwood, leading a coalition of 8 Attorneys General, today announced a lawsuit against the Trump Department of Interior (DOI) for drastically narrowing the scope of protections provided to migratory birds under the 100-year-old federal Migratory Bird Treaty Act (MBTA). New York’s over 300 migratory bird species have substantial ecological, scientific, and economic value to the State; for example, birdwatchers and other wildlife watchers contributed over $4.2 billion to New York State’s economy in 2011.

For the past 100 years, the MBTA has been a cornerstone of efforts to conserve waterfowl, egrets, songbirds, birds of prey, and other cherished and economically-important bird species. Yet a legal opinion issued by the Trump DOI late last year now prohibits the Department and the U.S. Fish and Wildlife Service (FWS) from exercising their long-standing and consistently-applied authority to enforce the MBTA against industrial or other human activities – such as spilling oil and failing to cover chemical waste lagoons – that kill or foreseeably kill migratory birds, but are not specifically intended to do so.

“In yet another giveaway to special interests at the expense of our states, the Trump administration has gutted the Migratory Bird Treaty Act – eliminating longstanding prohibitions on injuring or killing over 300 species of migratory birds that provide critical ecological, scientific, and economic value to New York,” said Attorney General Underwood. “Our coalition will fight to reverse this reckless and illegal action – just as we have successfully beaten back so many of the Trump administration’s destructive policies.”

In the lawsuit filed today in the U.S. District Court for the Southern District of New York, the coalition argues that the DOI opinion contradicts the plain meaning, structure, and intent of the MBTA, and its broad prohibition on the “taking” (injury or death) of migratory birds “by any means or in any manner.” The suit calls the opinion “arbitrary and capricious and contrary to the law,” and asks the court vacate it. 

Congress enacted the MBTA in 1918 to implement a treaty between the United States and Great Britain (acting on behalf of Canada) and, since that time, the Act has been key to conserving and protecting the nation’s migratory birds. The federal scope of the MBTA is essential to safeguarding migratory birds, as it reflects that fact that once birds migrate outside a state, that state does not have the ability to protect them through its laws and regulations

The MBTA makes it unlawful to “take” or “kill” any migratory bird “at any time, by any means or in any manner,” unless permitted by regulation. The DOI and FWS, the agencies responsible for implementing and enforcing the MBTA, have for decades recognized that the prohibitions in the Act on taking migratory birds encompasses all activities that both immediately kill or will reasonably foreseeably result in the death of the birds – whether or not the actor specifically intended to kill birds in undertaking the act.

In January 2017, the DOI issued a legal opinion reaffirming FWS’s longstanding interpretation that the MBTA applies to industrial and other human activities that will foreseeably – but not intentionally – kill migratory birds. The opinion re-confirmed that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing,” and that “the government need not show that a defendant willfully or intentionally took or killed birds to prove a violation of the MBTA.” However, less than a year later, the Trump DOI issued a legal opinion withdrawing and replacing the previous 0pinion, and reversing the two agencies’ longstanding interpretation of the MBTA. The new opinion reinterprets the MBTA – with no intervening change in the law – as prohibiting only activities that “have as their purpose the taking or killing of migratory birds,” such as poaching.

The longstanding recognition by the DOI and FWS that the MBTA prohibits “incidental take” – takings that result from, but are not the purpose of, carrying out an otherwise lawful activity – has provided critical protections for the millions of birds whose migration expose them to injury or death incidental to industrial and other human activities. The threat of enforcement of the MBTA has provided a strong incentive to those engaged in activities that may result in incidental take of migratory birds to undertake reasonable, low-cost measures to avoid, minimize, and mitigate such take. The federal Department of Justice, acting on behalf of the two agencies, has previously reinforced these incentives, and deterred potential violations of the MBTA, by prosecuting those who engaged in activities resulting in the incidental killing of large numbers of migratory birds, including oil spills and failure to cover chemical waste lagoons known to attract birds.

Over 300 species of migratory birds protected under the MBTA regularly nest, winter in, or migrate through New York; the overwhelming majority of these birds migrate outside New York at some point during their lives. The state has a long and established interest in the study and conservation of birds. It is home to the National Audubon Society, the Cornell Ornithology Lab (one of the world’s preeminent academic centers for the study of birds), the American Museum of Natural History, and world-renowned birding destinations like Central Park and Jamaica Bay National Wildlife Refuge.

Migratory birds, which include virtually all species indigenous to New York other than certain upland “game” birds (such as grouse or turkey), provide substantial benefits to states by, among other things, controlling insect and rodent populations, pollinating plants, spreading seeds, and providing recreational opportunities. For example, birdwatching is a multi-billion-dollar industry, with birdwatchers and other wildlife watchers spending approximately $4.2 billion in New York in 2011. Fees charged by New York and other states for the legal hunting of migratory waterfowl generate millions of dollars for conservation programs, and also generate related economic activity.

The coalition filing the lawsuit is led by Attorney General Underwood and includes the Attorneys General of California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, and Oregon.

This matter is being handled for Attorney General Underwood by Senior Counsel for Enforcement Andrew J. Gershon, Deputy Bureau Chief Monica Wagner, and Special Counsel Matthew Eisenson of the Environmental Protection Bureau. The Bureau is led by Bureau Chief Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Matthew Colangelo.