Audubon Claims Nearly All US Bird Species Are @ Risk

Guest Essay by Kip Hansen


featured_image_AudubonIf you thought it was only IPCC-itis and associated climate cognitive disorders that resulted in wildly improbable, downright nut-case spreading of alarming-but-false doom-is-upon-us stories, you have not signed up for the enlightening email updates from the National Audubon Society.    Their latest offering, arriving in my inbox this week runs as follows:

“Nearly all U.S. species are at risk. We’re fighting back.

Our fiercest fight for birds depends on you.

We’re not giving up without a fight. We’re defending our country’s best bird law from the administration’s attacks, for the sake of the species it shields—nearly all U.S. birds.

Let’s be perfectly clear, before you start to slip into despair — not all species of birds in the United States are at risk of extinction– not even close. I have written several times about the birds and the overheated claims of threats:

Despite Climate Claims, These Birds Are Not Declining

Birds in Crisis?

Update: About those claims of declining bird populations due to ‘climate change’

About those claims of declining bird populations due to ‘climate change’

Now the National Audubon Society is telling us that “nearly all U.S. species are at risk”.   “At risk of what?” you might rightly ask.  That’s a good question.

They are at risk, we find, of not being covered by a mis-interpretation of the Migratory Bird Treaty Act — mis-interpreted and enforced as criminal law for the last 40 years or so.

This is a very interesting story about how a simple idea — and a good idea — gets snuck into the cannon of federal Law in the United States — where it grows, like a fungus under cover to pop up like a mushroom in a form its originators never intended.

All the hullabaloo is about an innocent seeming memorandum “M-37050 — Subject: The Migratory Bird Treaty Act Does Not Prohibit Incidental Take”.

The real story concerns two-party politics, lobbying groups, and special interest activists organizations — in short, skullduggery of the highest order.  One of the least biased reports is in the online forum GRIST titled “Trump administration rolls back protections for migratory birds, drawing bipartisan condemnation”.  [You are right, that doesn’t sound “non-biased”, but it is the best of them — the others are far worse!]  The Grist piece at least gets the history part right, even though the story is published in their “Climate” section — where it is irrelevant.

Here’s the nut of the problem:

Under the new interpretation, the Migratory Bird Treaty Act forbids only intentional killing — such as hunting or killing birds to get their feathers — without a permit. The administration will no longer apply the act to industries that inadvertently kill a lot of birds through oil drilling, wind power, and communications towers. Critics fear that these industries might now end the bird-friendly practices that save large numbers of birds.”

For those of you who really want to understand what is going on with the Migratory Bird Treaty Act and its interpretation, I highly recommend reading the original memorandum  — M-37050 from the United States Department of the Interior’s — Offce of the Solicitor prepared by  Daniel Jorjani. (41 pages)   It is a marvelous piece of legal reasoning, following the tradition often seen in the US Supreme Court of “strict constructionism” — simply stated as “Strict construction requires a judge to apply the text only as it is written”.  Here “the text” refers to the law exactly as written by Congress or as it appears in the Constitution.  Strict constructionism is often portrayed in opposition to “’judicial activism’, used to describe judges who seek to enact legislation through court rulings”.

The battle between strict constructionism and judicial activism has been being fought during  my entire lifetime in the courts of the United States.  In this instance, we have a clear example of what happens when federal judges attempt to make “new” law through interpretation of existing laws.

The original Migratory Bird Treaty Act itself was an example of Congress trying to get around the U.S. Constitution.  The Constitution does not give Congress the authority to make laws about the killing of animals in the various States.  In the first decade of the 20th century, there were shocking examples of senseless slaughter of bird species — both for food (market hunting) and for less needful things, such as feathers to adorn the hats of fashionable ladies.  There were great profits to be made in both arenas.  The Passenger Pigeon was hunted to extinction for sale to the markets of Europe.  Egrets, pheasants and other birds with long showy feathers were subject to having their nesting sites raided by feather hunters, destroying not only the current generation of adult birds, but the next generation of chicks.  Congress felt they had to do something — but lacked the authority necessary.

The Lacey Act of 1900 sought to limit the damaging effects of commercial hunting by prohibiting game taken illegally in one state from being transported across state lines.  This was followed-up in 1913 by the Congress which included language in an appropriations bill directly aimed at limiting the hunting of migratory birds, the “Weeks-McLean Law,” which sought to give the Secretary of Agriculture authority to regulate hunting seasons for migratory birds nationwide.  Since the Congress has no such authority, “the district court for the Eastern District of Arkansas in United States v. Shauver ruled that “[t]he court is unable to find any provision in the Constitution authorizing Congress, either expressly or by necessary implication, to protect or regulate the shooting of migratory wild game when in a state, and is therefore forced to the conclusion that the act is unconstitutional.”” [source:  M-37050]

The second approach, which eventually proved successful, was to ask thePresident to propose to the Governments of other countries the negotiation of a convention for the protection and preservation of birds.”  In other words, to make an international treaty, which Congress would then have the authority to make laws to enforce.  This is  granted by the Treaty Clause of the U.S. Constitution.

Thus, pursuant to this end, the United States and Great Britain  (acting on behalf of Canada, which was still part of Great Britain) entered into the Convention between the United States and Great Britain for the Protection of Migratory Birds, (Aug. 16, 1916) (ratified Dec. 7, 1916)  known today as the  “Migratory Bird Treaty”.  Subsequently, the Migratory Bird Treaty Act (MBTA) was passed by Congress in 1918.  This statute made it “unlawful without a waiver to pursue, hunt, take, capture, kill, or sell birds listed therein as migratory birds. The statute does not discriminate between live or dead birds and also grants full protection to any bird parts including feathers, eggs, and nests. Over 800 species are currently on the list.” [Wiki]

There you have National Audubon’s “nearly all U.S. species” — since 1918, nearly all species of birds in the United States (over 800) have been added to the list of birds protected under this federal law.

Thus, Congress’s end-run around the U.S. Constitution was accomplished by making a Federal International Treaty, which Congress was then obliged to enforce.

The treat specifically made it:

  “unlawful to hunt, take, capture, kill, attempt to take, capture or kill,  possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship,  cause to be shipped, deliver for transportation, transport, cause to be transported,  carry or cause to be carried by any means whatever, receive for shipment,  transportation or carriage, or export, at any time or in any manner, any migratory  bird, included in the terms of the convention between the United States and Great  Britain for the protection of migratory birds concluded August sixteenth, nineteen  hundred and sixteen, or any part, nest, or egg of any such bird.”

That is the “text” of the law — which the new “interpretation” (M-37050) clarifies, following a “strict construction” approach.

Grist (linked above) reports that “Paul Schmidt, a top official in the migratory bird program under both Presidents Bill Clinton and George W. Bush, became the “spark plug” for the opposition to the new policy. He contacted his counterparts in other administrations as well as higher-ranking officials who served presidents from both parties. “One hundred percent all agreed immediately that was a bad interpretation,” Schmidt says. They waited for Bortner’s retirement to be official so he could sign their protest letter, and then they sent it to Zinke [Ryan Zinke, United States Secretary of the Interior]. ”

These ex-officials want the MBTA to be read as saying:

 “It shall be unlawful to hunt, take, capture, kill … by any means whatever … at any time or in any manner, any migratory bird.”

The trouble for them (and the other environmental activists and their organizations)  is that  the law does NOT actually say that.    My English teachers and professors would have had a myocardial infarction at the very thought that educated people would try to wrest that reading from the simple, straight-forward wording in the original.

It’s the ellipses, you see, that my language tutors would object to — the ellipses (two sets of them in the pull-quote above) are “marks or a mark (such as … ) indicating an omission (as of words) or a pause”.

Let’s compare the original law and Audubon’s “preferred reading”:


To add to the confusion, neither the original law or the Audubon preferred reading is as the law actually reads in present time.  Today, the text of the law is as follows:

Unless and except as permitted by regulations made as hereinafter provided, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds…

In this later version of the law, as it evolved, the phrases “at any time” and “by any means or in any manner” have been moved to the beginning, right after “it shall be unlawful”.

The Office of the Solicitor of the United States Department of the Interior carefully works its way through the “original intent” arguments to arrive at the conclusion that the original treaty and the intent of Congress to make killing migratory birds  illegal, outside of the permitted federally established hunting seasons and permitting processes, does not apply to “incidental” (or accidental) killing of migratory birds.

Part of the Solicitor’s reasoning is as follows:

The Supreme Court has recognized that “[a] fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”  “No one may be required at peril of life, liberty or property to speculate as to the  meaning of penal statutes.” Accordingly, a “statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Thus, “[a] conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained ‘fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement. ‘”

If you can’t read a law and be able to figure out what you need to do or not do to comply, then that law is unconstitutional.  The MBTA has been applied over the last 40 years to criminalize such lawful activities as the building of power transmission lines, putting up buildings with windows, drilling for gas and oil, erecting of wind power turbines and using approved methods of agriculture to produce food because, in some cases, migratory birds have been accidentally — incidentally — killed by these actions.  Anyone driving on the Interstate highway system is a potential criminal — he might accidentally hit and kill a migratory bird.

As another court ruled:  “Thus, there appears to be no explicit basis in the language or the development of the MBTA for concluding that it was intended to be applied to any and all human activity that causes even unintentional deaths of migratory birds.”.

Of course, and arguably worse, not every violation is prosecuted or even discouraged — only select actions and perpetrators have been targeted for prosecution.  In other words, the interpretation in use has resulted in “seriously discriminatory enforcement” — at the whim of federal prosecutors — dangerously prone to political or ideological bias.

Those who wish to maintain  the unconstitutional application of the Migratory Bird Treaty Act, such as Audubon,  are suing the Government over the issue, as expected, hoping to get the suit in front of yet-another activist judge.  [I suspect that this will do nothing but put money into the pockets of high-ticket environmental law firms.]  There is a way for them to achieve their desired end:  get Congress to make a law that is constitutional and clearly makes it unlawful to accidentally, incidentally, kill or harm migratory birds.  I wish them “Good Luck with that.”

Those specifically interested in this topic and the administration’s logic must read M-37050 in its entirety — it is well worth the time.  Every law student, political science major, politician (at any level), lobbyist or any other person interested in how laws are made and applied, should read the memo.  Not everyone will agree with the Solicitor’s view, but his legal reasoning is sound and persuasive.

It is my personal opinion that the same logic and process should be applied to other areas of federal government policies that are being enforced  as “law” without any basis in statutes passed by Congress.

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Author’s Comment Policy:

 I am not a lawyer.  By inclination, I am a “strict constructionist” — despite having been a 1960s rebel — and carry a pamphlet-sized copy of the U.S. Constitution in my suit-coat pocket.  It settles a lot of arguments with people who say “That’s unconstitutional!” or  “That’s my constitutional right!”. (It almost never is — Americans are, in general, astonishingly ignorant of the contents of their national constitution.)

This change in interpretation of the Migratory Bird Treaty Act is the second major correction of long-standing malpractice by the federal government — the first being the ongoing battle to correct the Obama-era definition under the Waters of the United States Rule (WOTUS Rule).

To be clear — I Like Birds!   I think we shouldn’t be killing them, intentionally, at all, and should make every reasonable effort to prevent killing them accidentally.  I do not think that the federal government has the right or power to criminalize the accidental killing of birds.

I’d like to read your thoughts on the matter.

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James Clarke
October 25, 2018 2:12 am

So, The Audubon people will be demanding the removal of wind turbines and solar collectors, I assume?

Reply to  James Clarke
October 25, 2018 2:33 am

You beat me to it , James

“Nearly All US Bird Species Are @ Risk”…

… nope, not enough wind turbines in the USA yet !

In Germany, Denmark … quite possibly.

Reply to  fred250
October 25, 2018 7:56 am

And beat me to it too.

Reply to  James Clarke
October 25, 2018 3:23 pm


The Audubon people are demanding that the interpretation & enforcement remain subjective so they can continue to play games.

They want to, in coordination with a compassionate ruling counterpart, be able invoke any and all restriction; while at the same time being able to ignore any rule that would harm their political allies.

If a non-compassionate ruling counterpart is in power, they want to be able to use treaty interpretation as a tool/club to beat the hell out of them.

October 25, 2018 2:44 am

Translation: donations are down.

Reply to  Roy W. Spencer
October 25, 2018 6:18 am

An organization loses its way when it hires staff to administer its activities. They have a way of stacking the board with their friends. The purpose of the organization then becomes keeping the paychecks flowing. When someone’s paycheck depends on public alarm, it’s obvious that alarmism will rule the day. Truth, honesty, context, wisdom, and the big picture quickly disappear. It’s like what Jerry Pournelle calls the Iron Law of Bureaucracy.

Reply to  Roy W. Spencer
October 25, 2018 6:43 am

The Audubon Society is “for the birds”.

Reply to  Roy W. Spencer
October 25, 2018 7:48 am

Roy (and Allan and commie) ==> I’d like to make it clear that it is National Audubon that is the culprit in this endless stream of alarm about birds — always tied to fund-raising.

Many local Audubon chapters are filled with good people doing good local work to preserve bird habitat and take reasonable actions to protect birds from unnecessary threats.

Comments to my previous essays on birds have shown that many of these good people are put off by National Audubon’s constant barrage of bad news and alarmist fundraising techniques.

My personal recommendation for bird lovers is to support your local Audubon with your donations with its local programs — and not the National organization.

Reply to  Kip Hansen
October 25, 2018 11:24 am

Looks like they tee off on Sir David Attenborough’s declarations.

Reply to  Kip Hansen
October 26, 2018 2:09 am

Hi Kip and all,

Does Audubon ever express concern about bird kills from wind power turbines, etc.?

October 25, 2018 2:58 am

Let’s at least hope that climate change thins out grackles.

Regarding thinning out junk mail… I used to contribute to Habitat for Humanity. That got me on the Carter Center’s mailing list. They used to do some good things, so I sent them $10. That got me a letter from Ted Kennedy on behalf of Handgun Control Inc. I stuffed their postage-paid return envelope with NRA literature and dropped it in the mail… Never heard from them again… 😎

dodgy geezer
October 25, 2018 3:05 am

…Anyone driving on the Interstate highway system is a potential criminal — he might accidentally hit and kill a migratory bird….

Given the expansive legislation over all aspects of automobile construction and operation, I’m pretty sure that ALL drivers are ACTUAL criminals, breaching some aspect of motoring law in Western countries every day.

One of my favourites in UK legislation is the requirement that all vehicle light-bulbs ‘…shall be clearly and indelibly marked with their wattage…’ . This means that, if you have a smudged print on the bulb you are committing a criminal act the minute the car is on a public road…

Reply to  dodgy geezer
October 25, 2018 8:24 am

In the US there is a law that all prescription drugs are to be stored in a container on which the patient name and prescription number are clearly labeled.

Because of this anyone who uses one of those pill organizers to keep track of their pills is technically breaking the law.

Mike From Au
October 25, 2018 3:55 am

Just put the windmills inside a plantation forest or somewhere surrounded by mono-culture, single species, plantation forests. The only thing not extinct in these “plantations” are the single species of trees. No danger for non existent birds or even insects. And even migratory birds soon learn not to visit a plantation forest.
Problem solved

MIke From Au
Reply to  Mike From Au
October 25, 2018 4:02 am

Here in Au, most of the state forest that was once native forest is now plantation forest. The conversion of native forest into plantation forest is so dangerous, protesters are not allowed to be anywhere within a radius comprised of kilometers for their own safety.

Buck Wheaton
October 25, 2018 4:01 am

If only we would protect unborn humans to the same extent that we protect unpatched migratory birds.

Buck Wheaton
October 25, 2018 4:21 am

Industrial scale “incidental” deaths. Not to be counted in the cost of “green” power, only in the cost of evil hydrocarbon-based power.

California solar power plants ignite birds mid-flight

Buck Wheaton
October 25, 2018 4:23 am

Industrial scale “incidental” taking of migratory birds.

California solar power plants ignite birds mid-flight

October 25, 2018 4:28 am

You can say that at any time..about any species..for any reason

michael hart
October 25, 2018 4:46 am

If you can’t read a law and be able to figure out what you need to do or not do to comply, then that law is unconstitutional.

I’m not a lawyer either, so I don’t know if that interpretation is correct.
I was previously of the mindset that one of the problems of the USA (and other Western nations) was a continual proliferation of laws, such that ordinary ‘law abiding’ citizens can always be found to have broken some law by those skilled in the art. This seems iniquitous and does need to be fixed, perhaps by both better education in legal basics and government actions to repeal/simply excessive pre-existing laws.

To step into the political realm, one of the criticisms of modern mass immigration is that too many immigrants are not sufficiently aware of what is legally expected of them in a new host country. In 1989 I was somewhat disturbed to find out how many UK citizens seemed to think it was OK to set fire to bookshops selling Salman Rushdie’s Satanic Verses because it offended their religious thinking. If i went to live in Saudi Arabia, I would be quite conscientious about observing their laws regarding, say, alcohol consumption.

Reply to  michael hart
October 25, 2018 10:09 am

Michael ==> You would be well advised to watch your step in foreign countries. Had a cousin that spent nearly two years in a foreign jail — never recovered mentally or emotionally.

October 25, 2018 4:56 am

Judge Scalia , a textualist called strict constructionism degraded textualism.
Now in case some think this is a word game, note textualism is from Hit-ler’s Crown Jurist Carl Schmitt.
Schmitt, from Kant, Hegel, Savigny, is the theorist of fas-cist powers of government.

The US Constitution is not a law, rather precedes all laws, especially the Preamble.

Textualists, even degraded variants, have lawfully a huge problem with the US Constitution.

The clear and present danger to various birds is my tomcat, with full intent, no textualist he.
Prince Philip thus wants to limit cats’ numbers. I am sure there is a law against that, probably small print.

What do textualists say when mirgratories return to fly right into new windpark blades, and are sliced and diced? They birds did’nt read the warning panel text?

Reply to  bonbon
October 25, 2018 7:15 am

To put it another way, Schmitt’s doctrine of “finality” should sound familiar here – “the science is settled”.
That Romantic School doctrine means the “revolution” makes the state, an irrational force beyond comprehension, “climate catastrophy”, and defines law in the state’s own self adopted image.

That should cast a clear eye on the so-called Great Transformation – its intent being between the texts ink is sheer Carl Schmitt.

Not very American I would say!

Reply to  bonbon
October 25, 2018 7:57 am

bonbon ==> Free-roaming domestic cats (owned or feral) are a major cause of declining populations of ground- and low-nesting birds particularly in urban and suburban areas. It is not so much that they catch and eat adult birds (though they do get some), it is that they eat the chicks in the ground- and low-nests like children eat gummie-bears.

I support all efforts to restrain domestic cats to the homes and yards of their owners, just like we do dogs. Feral cats need to be rounded up and euthanized for public health reasons.

Reply to  Kip Hansen
October 25, 2018 10:52 am

I noticed the Tom’s preference for chicks. Since he also gathered mice (some very big), I wondered what was triggering his spree.
Then it clicked – he only slaughtered when he could show off the catch in the house, never ate all the prey. Some kind of ancient pride instinct. So, simple, a half duplex cat door solved that. He can go out but has to pass customs to get in. Does’nt want to be checked, no more interest, no more showing off. Problem solved.
Wild cats are rounded up and sold by an agency.
As far as the birds go, they are a real pest with nests along the roof – had to install fishing line to make it difficult. Otherwise they spread all kinds of viruses from dried out guano dust and ruin the walls. Farm roofs and trees nearby would do but for some reason they head for residences.
Anyway this cat bird civil war has been going on fo r~ 30 million years – they appeared somehow together, made for each other.
And something I’ll bet no one has noticed – the Tom actually copies the bird sounds – unbelievable! Numerous times I’ve heard this, as if to lure them or simply announce their doom. Cat’s are known for concentration, no wonder the Egyptian awarded godhood to Bastet , on display at the Louvre.

Reply to  bonbon
October 25, 2018 11:18 am

comment image

Mark - Helsinki
October 25, 2018 6:03 am

They cry for the unborn birds, and call for abortion to be used as birth control at the same time.

They cry for more immigration, and call for abortion to be used as birth control at the same time.

The left is mentally ill.

James Bull
October 25, 2018 6:33 am

This is the same crowed (like our UK RSPB) who don’t count the birds bats and other wildlife killed by solar arrays and windmills.

James Bull

Ron Long
October 25, 2018 7:00 am

Good post, Kip. Reminds me of the time, more than ten years ago, when I applied to the BLM for a drill permit in northern Elko County, Nevada. The BLM said they were concerned about the Sage Grouse that MIGHT be in the area and would not give me the permit. I then pointed out to them that it was legal to shoot and eat Sage Grouse in Nevada, and I intended to eat as many as possible. I went to the Elko County Commissioners and they agreed to give me a drill permit and to send the County Sheriff to protect the project, whereupon the BLM issued their permit. Direct Action!

Ditto for the comments about wind turbines and solar systems killing birds, and, again, everyone who has any interest in that theme needs to go and stand underneath these killers and see for themselves.

Reply to  Ron Long
October 25, 2018 7:58 am

Ron ==> Thanks for sharing your story.

Dave Fair
Reply to  Ron Long
October 25, 2018 10:25 am

Stalin (reportedly): Show me the man and I will show you the crime.

Reply to  Ron Long
October 25, 2018 11:34 am

As a geologist working for the BLM in Elko a bit more than 10 years ago, I used to chuckle at our biologists irrational fear of drill rigs causing Sage Grouse to abandon habitat. I can remember walking up to a rig near Jackpot, in the morning before the crew arrived and seeing several sage grouse roosting on the mast. That thing was noisy all day but once shut down became a refuge from coyotes during the night.

Ron Long
Reply to  OrganisedEntropy
October 25, 2018 3:56 pm

Great Reality Check, Organised! The project I was referring to was at Cornucopia. It was not the first time career BLM managers learned to not mess with the Elko County Commissioners.

Peta of Newark
October 25, 2018 7:07 am

I’m gonna talk about things in the UK, check what might similarly apply elsewhere:

1. Back to WW2 and food rations. Many folks would keep chickens and or have a Dovecote to supplement their rations and were, in fact, encouraged to do so. (Chooks eat bugs – they find them somewhat more appetising than people do)
Now then, if a dirty great feathered killing machine descended from the heavens and trashed your chicken coop or Dovecote, it was A Serious Matter. People, typically children being given the ‘good stuff’, would go hungry and so steps were taken to ensure such trashing didn’t happen again.
But nowadays, those aerial killing machines are protected – you are criminalised just for looking at them with angry intent.
Same applies to ground based killers such as foxes and badgers.
Say goodbye to any and all ground-nesting birds when they are around *and* protected by law.

2. Farming in olden days was a messy business and lots of grain was left in over-wintered stubble fields Also in ricks & riggs where crop was stored before the (coal powered) threshing machine visited. All = valuable food and shelter for the little birds.
No more.
Overwinter stubble has gone in favour of so-called ‘winter’ crops and modern combine harvesters are quite effectively vacuum cleaners. Very very little is left in the field for the birds.
Then now also and by Government Edict, grain stores now have to be ‘vermin proof’
Thanks to the supposed ‘support system’, you are quite effectively put out of business for non-compliance.
‘Vermin’ includes small flying critters.
So all the stackyards, riggs ricks food and shelter they used to have around farms have gone.
Also, farms used horses and the small birds would join in Dobbin’s feeding time, picking up spilled or dropped grain. Oats obviously and would be a year round supply of food for them

The food supply, nestin sites and shelters have all gone in the name of Health, Safety and Efficiency and, No Surprise, so have all the small birds.
Starved via Government Regulation,
or eaten alive by aerial raptors,
or had their nests raided by ground based predators, which,
thanks to Walt Disney not least, are all lovable bundles of anthropic joy, sweetness & light.

Wasn’t it strange in the ‘Circle of Life’, we never saw Simba actually killing or eating anything nor did we see him or his parents having sex. Surely more important pastimes in ‘The Circle of Life’ than telling your uncle how to behave. Ain’t that just what we have now?

Yet folks during the time of war-time rationing were never healthier and certainly not shy of making babies (as they are now)
Me and you are almost certainly one of those babies.
What happened. What went wrong.

Reply to  Peta of Newark
October 25, 2018 9:07 am

Peta ==> One of the new Mandatory Labels: “This is a Disney Movie — it is not a good source of religious, philosophic or scientific truths. Parents are cautioned to make this clear to their children.”

October 25, 2018 7:23 am

Kip, in North American aboriginal (indigenous) populations, as well all know and see, they have their custom with the head bonnet or native American headdresses. War bonnets, peace bonnets and all kinds of bonnets for every occasion, which is their ancient custom.

I am assuming they are real feathers and not made in China…or are not chicken or turkey feathers. Where do all the feathers come from in the headdresses of aboriginal feathered headdresses? There must be multiple thousands of these head bonnets and headdresses now with the resurgence in native North American aboriginal and indigenous tribal and religious customs.

I have seen stories in the press over the years of people of every ethnic background for having being convicted for killing eagles, owls and hawks etc for their feathers as a saleable commodity for these purposes. Can you shed any light on this, and if the National Audubon Society has ever taken a stand one way or the other on this. Are the national/state/provincial laws about killing birds designed on purpose for these headdresses? Many of these birds are not killed for their meat. It is also more than just North American…the feathered headdress bonnets occur globally in indigenous cultures. This is a lot of feathers, which would be a major stress on the birds whose feathers are utilized.

Reply to  Earthling2
October 25, 2018 8:01 am

Earthling2 ==> The Federal government, in all its wisdom and sympathy for “native customs” has passed a law making an exception for Native Americans regarding the feathers.

Reply to  Kip Hansen
October 25, 2018 12:17 pm

Not just feathers but other wild life too. ODFW can shut down salmon fishing in rivers due to low returns but Native Americans are still allowed to catch salmon due to “tradition”. Of course that tradition includes the ability to catch as many salmon as they want, use gill nets (along with other normally illegal methods to the rest of us) and sell their catch on the roadside to anyone who has the cash.

HD Hoese
October 25, 2018 7:26 am

I once got in trouble during the Carter administration for giving a dirty, bleached, skinless bottle-nose dolphin skull to a museum whose director failed to report it. They inspected collections. Finally, they told me to sign a document admitting culpability based on the Marine Mammal Protection Act. Because I had read it and did not technically violate the act, I told them to go away, finally the bureaucracy got tired, but it was after a change in administration.

Some professional organizations giving out certifications have been as bad as the government. Like cartels.

What does Audubon think about Whooping Cranes? Some are getting too tame. Besides cattle they are hanging out some with very abundant sandhill cranes which are still hunted last time I checked. Also around deer feeders.

HD Hoese
Reply to  HD Hoese
October 25, 2018 7:34 am

I should mention that back then federal agencies knew about the constitution. That is why they were interested in migratory birds, which fell under treaties. Or something like that.

Gerald Machnee
October 25, 2018 7:50 am

A couple of years ago when Audubon did their thing on the climate change affecting most of the birds’ habitat, I sent letters to the directors. They would not discuss anything about the IPCC assumptions with me, just stating, “our science is sound”. I never got past the secretary.
So there in no sense talking to them. After a couple of letters, I got nothing. Very similar to the Suzuki Foundation. Nobody home.

Reply to  Gerald Machnee
October 25, 2018 8:07 am

Gerald ==> They are home — “home” is just not the place the public thinks it is. They are doing something different than just “protecting birds” — they are protecting first and foremost the “bird protecting industry” (themselves and their jobs and their prestige and their ‘virtue’). They live by the “Anything for a good cause” rule — which means it is OK to warp reality, propagandize, lie, cheat, steal (maybe they stop short of murder…? but not character assassination).

Local chapters of Audubon, however, are really trying to make things better on a local level — protecting a local wetland, building raised boardwalks through swamps so people can safely and kindly view the birds there, etc.

John F. Hultquist
Reply to  Kip Hansen
October 25, 2018 2:24 pm

Kip says: “Local chapters of Audubon, . . .”

We participate in the “local” meetings but refuse to pay National dues.
The local group does have a climate-change committee that keeps pushing the birds-are-doomed agenda and the solar/wind/green stuff. It is sort of a religion with these few, and we ignore this part of it.
Unrelated: We have noticed — and we are not alone — that the average age of those in the local chapter is 70+.
Another organization we care about — old time music (think fiddles) — about 30 years ago realized this was happening in Washington State. They started a summer fiddle camp for young folks. Because of its growth, it has had to move to larger places. It is no longer just for the young. It has been a great come back.
Whether the local Audubon is typical or not we have no idea. But Audubon and a few other groups we know of are fading away. For some, example The Grange {city folk will have to look it up}, the reasons for the decline are easy to see. Audubon, not so much. Complacency?

Doug Allen
October 25, 2018 8:36 am

I was a member of Audubon for many decades starting around 1967 when I began birding. Only in recent years with Audubon joining most other environmental groups in promoting predictions of global warming (hypotheses) as “the science,”have I allowed my membership to lapse. I agree with Roy Spencer that part of it is strategy to raise money although the number of memberships lost- mine and many others, here- may also be significant. With wildlife refuges and other efforts such as international treaties, we humans have done a fair job in preserving most species although some of my favorites like box turtles, and the larger mammals, are victims of out success as a species.
As to the constitution, I disagree with the usually reasonable Kip Hansen and his promotion of strict constructionist. To quote Anthonyin Scalia, “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”
The divided politics of our time is replacing reasonableness with narratives that promote division and unwillingness to find common ground or even listen to other opinions. Reasonable people can disagree, and those disagreements devolve into culture war politics and incivility when partisans replace reason with ideologies such as strict constructionism. I wish we had a reasonable congress where partisans could work together. In its absence, we probably will have continued conservative and liberal judicial activism that divides rather than unifies our country and makes solving problems like protecting migratory birds far more difficult than it might otherwise be.

Reply to  Doug Allen
October 25, 2018 9:12 am

Doug ==> You are quite right — reasonable people can disagree and should agree that disagreement does not make them enemies or combatants.

In support of ‘strict constructionism’ I would say that it offers the opportunity for the legislatures of today to re-make the laws to better conform with today’s realities. This “re-making” needs to be done by the constitutionally authorized legislative branch of government, not by the Administration nor the Justice system.

If the laws need to be changed because of changed conditions (new technology or new social values), then the Legislature must do it.

Michael S. Kelly, LS, BSA, Ret.
October 25, 2018 8:53 am

“Audubon Claims Nearly All US Bird Species Are @ Risk”

They aren’t at our place in Northern Virginia. We live out in the sticks, in Manassas, and one of our favorite things is feeding the critters. Birds, squirrels, and even foxes (but not raccoons – one of the little bastards scratched me rather deeply, and I had to get rabies shots). We go through a 40 pound bag of Audubon wild bird mix every three weeks, and several pounds of suet (for the woodpeckers, mainly the Pileated woodpeckers) every month. My wife catalogs all of the species, and the number stands at about 38 IIRC, including bald eagles. A great many of them are migratory. In fact, the population of Canada geese that pass through every year has grown to the point where they’re a major nuisance.

The main non-migratory species is the cardinal. We moved in two 2.5 years ago, and only one or two pairs of cardinals showed up initially. Now they mob the cardinal feeder from pre-dawn until late dusk. The migratory species seem to be on the rise as well.

(As for the squirrels, well, they’re just nuts.)

Reply to  Michael S. Kelly, LS, BSA, Ret.
October 25, 2018 10:15 am

Michael ==> Quite right — cardinals are year-round in your area (and in Hawaii). I suspect the increase at the feeder has to do with recruitment of birds alerted to the free and plentiful food there. It is quite common to put out a new feeder in a neighborhood and think that there are few birds — as so few visit. But after a while, days, weeks, months the word spreads and there are now lots of birds….they are not so bird-brained as humans think!

October 25, 2018 8:54 am

Your arguments are partially persuasive, and partially unpersuasive. It would help if you were a lawyer when writing essays like this. Understanding the law is not just for lawyers, but clearly your understanding of the Constitution and how it works is very limited, whether or not you carry a pocket version around with you.

First of all, the Constitution specifically grants Congress the power to regulate interstate commerce, as well as the power to regulate trade with foreign nations. Migratory birds that are taken in commerce (the original purpose of the migratory bird act was to regulate such commerce) clearly falls within both interstate commerce and in most instances also international commerce. So regardless of any authority to Congress with respect to treaties, Congress clearly has the Constitutional power to regulate the commercial taking of migratory birds, or any other migratory animals. A real “strict constructionist” as you claim to be would know that.

The other argument you make, about interpreting Federal laws in such a manner as they are impossible to comply with, has some merit, but even that is somewhat limited.

A truly innocent “accidental take” refers to some act or omission that could not possibly have been anticipated, but happened anyway. Those who design and build infrastructure, whether buildings or wind turbines or highways or factories are required to take into account the effects on threatened and endangered species in particular, and all species generally (if defined as a “major Federal Action” under National Environmental Policy Act), and/or under the various State environmental laws, are required to make all reasonable efforts to mitigate or prevent unnecessary and potentially negligent accidental takings.

In other words, there are truly and clearly innocent accidental takings, and there are clearly negligent accidental takings … and there are also those accidental takings that are in the gray zone in between.

Being able to discriminate between the various versions of liability and negligence above is the trick to effective but sane environmental regulations.

But, your basic theory that Congress has no power to regulate migratory species is clearly incorrect and has always been the law of the land under our Constitution.

Reply to  Duane
October 25, 2018 9:19 am

Duane ==> Please read the Department of Interior Solicitor’s Memo to see their reasoning. They sharply disagree with your viewpoint and explain quite clearly why they do.

Congress has never had to authority to regulate migratory species (they themselves are not commerce) and only has the authority to pass laws to implement the international treaty.

Reply to  Kip Hansen
October 25, 2018 11:51 am

Any product or process that is “in commerce” or “has an impact on commerce” is under the authority of Congress to regulate. Commercial takings of animals, plants or other items that are in commerce or that impact commerce are thus subject to regulation under the interstate commerce clause.

The interstate commerce clause and its delegated powers to Congress are the basis of a very large proportion of the Federal regulatory framework in service today, affecting many things in life that are not even obviously or necessarily directly commercial in nature, including the movement of waters, of species, and even of pollution. The Congress and the Federal courts have generally been very expansive in interpreting Congressional powers in that way.

Now if we were discussing purely recreational takings of wildlife, that is somewhat, but not entirely, different story. For instance the Federal Endangered Species Act of 1973 is authorized under the interstate commerce clause of the Constitution in part because species do not respect state lines, and in part because all Americans have an interest, declared by Congress, in protecting all endangered species in the USA even if they currently live in only one state, and regardless of whether a taking is commercial or purely recreational. The authority may be based upon some classes of activities that do not necessarily even cross state lines, but that have a “substantial impact” on endangered species on a cumulative basis.

This is how our Constitution and our laws work. There is no debate that this is the law of the land.

Reply to  Duane
October 25, 2018 3:31 pm

Duane ==> You obviously did not read the Memo.

Reply to  Duane
October 25, 2018 4:07 pm

Yep, how can such logic be wrong.

Water evaporates and crosses State lines. Wind crosses State lines. CO2, necessary for plant growth and therefore commerce, crosses State lines. All can be regulated at the direction of experts such as yourself.

Such logic gave us the Affordable Care Act.

Such logic said (for a while) that the Feds can regulate small private ponds (that don’t have any connection to any other water) because the geese may use them in their migration; it was the “law of the land” for a while … it isn’t anymore.

The Congress and the Federal courts, in the past, had generally been very expansive in interpreting Congressional powers in that way. This is one reason that the representation on the federal courts has recently changed.

Our Constitution is the law of the land. Ignoring our constitution, to set a specific policy, creates a “policy of the land” that can and should be changed.

Reply to  DonM
October 26, 2018 7:15 am

Duane ==> I see we actually agree — this is why the Dept of the Interior memo was written, to set things back the way they should have been based on the law of the land — not judicial whim.

Reply to  DonM
October 26, 2018 9:53 am

Sorry Kip,

I should have started out addressing Duane….

Duane is still dense.

October 25, 2018 10:35 am

Not GW. But relevant.

Could wind farms wipe out BIRDS?
Populations are much smaller close to turbines because their habitat has been ruined, study finds
Clearing habitats to make wind turbines is killing off birds in Ireland
Populations were ten per cent lower in areas close to wind turbines
Forest species such as chaffinches, great tits and gold-crests were worst hit

Reply to  Cam_S
October 25, 2018 11:17 am

Cam ==> I am hoping they will find some way to prevent birds from flying through wind turbines….flashing lights on the leading edges? sound making additions to warn off birds (hopefully, not driving human neighbors crazy) — something.

Wind power is not usually installed in heavily forested areas….

Reply to  Kip Hansen
October 25, 2018 11:24 am

I’m thinking a giant cage, like I have on the fan in my house. So little kids don’t stick their fingers into the turning fan blades. If engineers can build giant walls, to stop Antarctic glaciers from dropping into the ocean, I’m sure they can engineer this. /sarc

Reply to  Kip Hansen
October 25, 2018 11:29 am

They sure have wrecked good old forest here with wind asparagus.

Suggestion – to keep birds away, how about cats? Put those wandering feral cats to work.

October 25, 2018 10:43 am

If President Trump deigned to address this problem, he could easily find a solution:

“I have today issued an executive order to close all air traffic control centers effective April 1, of next year. The airline industry has been violating the Migratory Bird Act as interpreted by bureaucrats and the courts by offering no remedy for the clear and present danger aircraft are to migratory birds, a problem easily anticipated (that’s for you, Duane, and your comment above).

It is up to Congress to clarify the law if such unintended taking of migratory birds was not to be included in the present laws.”

Now let the screaming begin.

Reply to  Jtom
October 25, 2018 10:59 am

An Executive Exception for the new Air Force One?

Reply to  Jtom
October 25, 2018 12:12 pm

Jtom ==> In the United States, it is the Congress that makes laws. Only Congress has law making authority. Executive branch agencies help to carry out laws passed by Congress — and issue regulations and rules that assist in that process. The Judicial branch, the federal courts, adjudicate disagreements about laws and the constitution, laws and rules and regulations, etc.

In the case of the MBTA the Department of the Interior is the interested executive branch. The new memo – M-37050 – clarifies and correct a long-standing misinterpretation of that law.

It might be possible for past misapplication of the law to be corrected now by appeal.

October 25, 2018 1:50 pm

I’m a little puzzled about the kerfuffle. Duck hunters in this country annually kill on the order of 25 million ducks. Ducks are migratory birds and clearly fall under the jurisdiction of the MBTA. There are rules (buy a federal duck stamp, use steel shot, bag limits and the like) but it is legal to kill migratory birds such as a mallard, pluck off its feathers, season with salt and pepper, roast on a bed of carrots, parsnips and potatoes, and eat said ex-duck accompanied with a glass of pinot noir.
That’s 25,000,000 ducks each and every year. Swatted out of the air legally. Under present law. So explain to me why I should be concerned about the wording changes.

Reply to  nvw
October 25, 2018 3:33 pm

nvw ==> Funny, isn’t it. Yet if the same duck lands in an oil well settling pond and dies from thew oil, it is a criminal act. But that was the law, until the Memo.

Reply to  nvw
October 25, 2018 4:20 pm


Duck hunters are given a “waiver”.

Now, industry (or any other frowned upon endeavor) is hit over the head with the act and can be blackmailed before a “waiver” is given, or not given.

The Audubon version gives more power to the government; they get to decide who will be waivered or prosecuted. It has nothing to do with dead ducks.

Gunga Din
October 25, 2018 4:28 pm

Lime-Soda water plants produce “sludge”. The sludge is most often sent to a sludge lagoon. It’s decanted and then the mostly solid sludge is removed and sent … elsewhere.
Where I work, we had some turkey vultures land on what appeared to be solid sludge. It wasn’t. They got stuck and died.
Before they died, we called the ODNR of my state to see if they wanted to “do something”. By the time they got there, the birds were dead. Turns out they are “endangered” here.

If we need to shut down or fine (heavily) oil drilling etc. because a few birds died in their sludge lagoons, then I guess we need to shut all the nation’s water plants.

Or maybe we get the same pass wind and soar get for killing birds.

Reply to  Gunga Din
October 26, 2018 7:12 am

Gunga Din ==> Where’s that now that the Turkey Vulture is Endangered? Here in the Central Hudson Valley of New York, they are getting to be pests.

We have both Turkey Vultures and Black Vultures here — and both are listed on the IUCN Red List as “Least Concern”. That doesn’t mean that there aren’t local or state laws forbidding killing them — they may be protected in any case.

Gunga Din
Reply to  Kip Hansen
October 26, 2018 9:09 am

Ohio. I didn’t talk to ODNR myself. That’s what the person who did call them said.
I find it a bit hard to believe myself but that’s what he said.
(Maybe he was told “protected” and that meant “endangered”?)

After typing that I looked them up on the ODNR website.
It say’s they’re common in Ohio.
(Guess we can keep the plant open.8-)

PS Thanks for asking. I got to correct one of my own false impressions.

Farmer Ch E retired
October 25, 2018 7:59 pm

The Audubon Society should be thankful for the combustion of fossil fuels. A recent article on WUWT titled “Global Tree cover on the rise – possibly due to CO2/global warming” indicated global tree cover has increased by an area about the size of Texas plus Alaska. That should provide a significant boost to bird habitat.

Reply to  Farmer Ch E retired
October 26, 2018 7:18 am

Farmer ==> Yes, I wrote a four part series on Global Greening.

October 26, 2018 1:57 am

Hi Kip – your article reminded me of this story from a couple of years ago when a Fish & Wildlife harridan harassed the mother of a little girl that rescued a woodpecker from her cat:

I think that if killing birds with cars or windows becomes potentially criminal (and possibly it already is in the US depending on how you interpret the Migratory Bird treaty), then inevitably people who happen to be disliked by those in authority will be prosecuted. That is the nature of bad public employees, political hacks and morons in general. We have similar laws for pretty much all vertebrate wildlife in Australia (cane toads excepted) – let your kid have a pet green tree frog and you could be in big trouble unless it is from your property and stays there (no taking it to show your friend) or they are over 13 and have a licence. Whack that magpie that has been dive bombing you and you are committing a crime. In theory anyway, and if someone in power doesn’t like you, reality bites.

Reply to  DaveW
October 26, 2018 7:27 am

DaveW ==> The utter idiocy of tyrannical over zealous enforcement of “environmental laws” defies all understanding. Examples would fill an entire library. Part of the problem is that the field of environmental policing seems to attract radical environmentalists of a particular type — people who feel the need to exercise power over others. this is coupled with the unfortunate fact that many of our environmental laws are written in draconian terms with penalties far outweighing the seriousness of infractions, and do not contain “Good Samaritan” loopholes or requirements that offenses be “intentional” for the forbidden purpose.

October 26, 2018 10:35 am


The use of vastly exaggerated threats to the things we all love and appreciate is one of the aspects of modern life that are causing many, especially young, people to suffer from depression and despair. It can make it seem that the future is dark and dangerous instead of exciting and marvelous.

My wife is currently reading the book “Factfulness: Ten Reasons We’re Wrong About the World – and Why Things Are Better Than You Think” by Hans Rosling, Ola Rosling and Anna Rosling Rönnlund” — which makes this point rather well.

Things are generally better than the MSM and other news and information outlets portray. There is no Sixth Great Extinction underway, Climate Change will make the world a better, friendlier place rather than a desolate wasteland, our governments are probably better than those of our great-grandparents, major diseases have been defeated in most of the world, and the air, water and the food we eat are far safer and healthier than at any time in the past.

In the Natural World, in the great game of life, there are winners and losers, for sure, but most things are just going along as they have for millennia.

Cheer up, it’s better than you think!

Thanks for reading.

# # # # #

Dave Fair
Reply to  Kip Hansen
October 26, 2018 11:06 am

Thanks, Kip.

Johann Wundersamer
October 26, 2018 5:55 pm

Kip, ‘doom-is-upon-us stories’: triple A rating!

Johann Wundersamer
October 26, 2018 6:18 pm

but that’s high performance: take oil drilling as front end


intentional killing of birds

to exempt

the only remarkable real world birds killing done by windelecs and solar-tower power-plants.

the Migratory Bird Treaty Act forbids only intentional killing — such as hunting or killing birds to get their feathers — without a permit. The administration will no longer apply the act to industries that inadvertently kill a lot of birds through oil drilling, wind power, and communications towers.

October 29, 2018 10:18 am
Reply to  Gamecock
October 29, 2018 10:20 am

Note that the definition of “migratory bird” is one that they have put on the list.

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