Guest Essay by Kip Hansen
If 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:
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 the “President 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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