Guest Opinion by Kip Hansen – 30 August 2020
Earlier this year, I wrote about the Migratory Bird Treaty Act [MBTA] and the efforts of the current administration in the United States to clarify federal law to ensure that it was no longer used by non-elected government bureaucrats to criminalize the accidental or incidental killing of migratory birds.
Once the new rule was issued, various interest groups sued to have the new rule vacated. That case has now been decided – based on two very important legal standards: fiction and opinion.
Now, it is very important to realize that it is the norm, not the exception, that cases like these are decided based on the opinion of the judge (or judges) handling the specific case and on all the opinions (decisions) issued by other judges in similar or related cases of the past.
The oddest thing is that this case seems to have been decided, in part, based on the opinion of a fictional character, Atticus Finch, one of the protagonists of Harper Lee’s magnificent novel, To Kill a Mocking Bird.
Here I quote the first paragraph of the opinion (aka Case 1:18-cv-04596-VEC Document 89) written by the Honorable Valerie Caproni, United States District Judge, Southern District of New York, who was appointed in 2013 by then-President Obama.
“It is not only a sin to kill a mockingbird, it is also a crime.1 That has been the letter of the law for the past century. But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”
Footnote: “1 See Harper Lee, To Kill a Mockingbird 103 (Harper Perennial 2002) (1960) (“Mockingbirds don’t do one thing but make music for us to enjoy. They don’t eat up people’s gardens, don’t nest in corncribs, they don’t do one thing but sing their hearts out for us. That’s why it’s a sin to kill a mockingbird.”); 50 C.F.R. § 10.13(c)(1) (2013) (listing “MOCKINGBIRD, Bahama, Mimus gundlachii” as a species protected by the Migratory Bird Treaty Act).”
Thus, the opinion (which just means a judicial decision in a case) is based on two fictions:
- The expressed opinion of the fictional character, Atticus Finch. I’m a bit leery of using Atticus as a legal precedent, but at least he was a [fictional] lawyer.
- The fiction that “That [it is a federal crime to kill a mockingbird] has been the letter of the law for the past century.” The Fish and Wildlife Service of the Department of the Interior never even considered taking legal action against accidental and incidental “taking” (killing, trapping, etc) until the mid-1970s [ source ] when anti-war and anti-draft activists jumped on the Rachel Carson-inspired environmental-activism wagon.
These two fictions sum up the entire decision of Judge Caproni, though she spends 31 pages of discussion of past opinions of other judges. Through the simple process of agreeing with those prior opinions which match her bias and dismissing those prior opinions with which she does not agree, she supports herself in her biased, activist position that results in absurd legal situations if taken as literally as she claims we must.
As much as she denies that this is so, she gives examples in her opinion clearly demonstrating some of these absurd situations. Take for instance this section:
“Second, Interior’s application of constitutional avoidance relies on an unpersuasive predicate application of the void-for-vagueness doctrine. That doctrine “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). Although Section 2 is broad, it is not vague. A law is vague if “it is unclear as to what fact must be proved.” F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). Due process requires that “laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” Id. Far from statutory language that criminalizes “contemptuously” treating the flag,18 “obscene, indecent, or profane language,”19 or “conduct that presents a serious risk of physical injury to another,”20 Section 2 [of the MBTA] gives persons fair notice of what exactly is criminal—it is unlawful to kill migratory birds by any means. See United States v. Smith, 29 F.3d 270, 273 (7th Cir. 1994) (“We are quite confident that ordinary people can understand [Section 2]’s clear and precise language. That language tells ‘ordinary people’ this: if you possess any part of a migratory bird, you break the law.”)” [emphasis added – kh]
Here is the full text of the statute:
“Unless and except as permitted by regulations made as hereinafter provided in this subchapter, 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 concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936, the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972, and the convention between the United States and the Union of Soviet Socialist Republics for the conservation of migratory birds and their environments concluded November 19, 1976.
Dear reader, I ask you, having read the law, is it your understanding, as an ordinary person, that if you pick up a robin’s feather from the lawn in your backyard, you have committed a federal crime? Of course not, neither do you consider yourself a criminal if you pick up a robin’s egg that has fallen from a nest or one that has failed to hatch and has been abandoned by Mother Robin. Yet, Judge Caproni insists that her opinion is true and must be applied not only to killing but the other prohibited actions as well. She insists that “ordinary people” would realize that they are committing a criminal act by collecting and keeping even the broken fragments of a robin’s egg, left after Baby Robin has hatched and flown away.
Have you ever picked up a pretty feather from the roadside and taken it home to delight a child? Judge Caproni says this is a federal crime! … and that “any ordinary person” would realize they are breaking the law. Not just a “jaywalking-type law”, but a federal law for which there are prescribed fines and terms of imprisonment.
By the way, as Judge Caproni interprets the law, you are also guilty of a federal offense “punishable by a fine of up to $15,000 and imprisonment for up to six months” if you chase greedy birds (say, grackles or cowbirds) away from your bird feeder or out of your vegetable garden – that is an unlawful “pursuing”. Collect old bird nests? Federal offense.
Do you have glass windows in your home? If so, you are at risk of committing the federal crime of killing a migratory bird by the act of failing to prevent said bird from killing itself by flying into your plate glass window or your sliding glass door. You may have already done so and failed to report yourself to federal authorities.
I admit, at risk of imprisonment and fine, that I have, in the past, committed this crime several times in various homes that I have owned. While I lamented the death of the birds, I did not think that these deaths made me a criminal, even though bird strikes are somewhat preventable. Bird strikes can be reduced by placing various types of stickers on one’s windows.
If you are an ornithologist , you have probably committed lots of federal offenses by pursuing, capturing or attempting to take various birds, their eggs, their feathers and nests unless you have a specific FWS permit to do so.
Wait a minute, wait a minute…don’t hunters legally kill lots of ducks and other migratory waterfowl each year? Yes, they do. How many? As of 2010, “Close to twenty million ducks and geese are shot each year by hunters in the United States and Canada” [ source ]. Not only do the federal and state governments allow this slaughter, they literally sell the privilege to kill these migratory birds to hunters in the form of Federal Duck Stamps and state-based hunting licenses.
You see, “FWS and DOJ have been careful to bring enforcement actions only in limited circumstances, such as when an entity has been repeatedly warned of the take, and has refused to take available measures to minimize it, or when large numbers of birds are killed.” [source: the Caproni opinion].
But, hey, come on, we just read Judge Caproni saying that legal void-for-vagueness “doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Yet she justifies the absurdity of the practical result of her opinion that “all killing of migratory birds is a crime” with the fact that FWS/DOI [Fish and Wildlife Service of the Department of the Interior] arbitrarily enforce the law, discriminating between offenders – supposedly obviating the absurdities. She assured us that they would not arrest my eight-year old neighbor for shooting a robin with his new BB-gun or his parents for killing a migratory duck without permit by hitting it while driving on the Interstate. [ Note: If that seems to be hard to understand, it is because it is blatantly contradictory.]
This fight has been going on for a very long time – with legal opinions in various cases falling on both sides of the debate – “Any Killing Is A Crime” and “Only Intentional Killing Is A Crime” – and several versions in the middle ground. There is a very good discussion on the issue in the .pdf here. For further review, a search of scholarly articles on the topic is nearly endless – over 38,000 and counting.
In truth, the original purpose of the Migratory Bird Treaty(ies) was expressed in this: “The 1916 Convention proclaimed the purpose of “saving from indiscriminate slaughter and of insuring the preservation of such migratory birds as are either useful to man or are harmless.” The original statute [MBTA] covers a lot of ground, most of it commercial in nature – “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.”
This most current decision, which will surely be appealed by the Department of the Interior, is a prime example of continued “judicial activism” intended to stretch the breadth of the law from simply covering “indiscriminate slaughter” (in its time, this meant massive market hunting and hunting birds to fulfill the demands for fancy bird feathers, mostly for women’s hats, and bird eggs for collectors) and spread it out to criminalize even the accidental and incidental — “by any means or in any manner”— actions, each action itself perfectly legal and expected, in many cases unavoidable, that could possibly be construed as or result in something akin to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill” any, even a single, migratory bird.
My copy of Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”
And here we see the value of “forum shopping”. In general forum shopping involves filing a law suit in a specific district court chosen for the likelihood that the case will be assigned to a judge favorable to the plaintiff’s cause. For environmental-issue cases being appealed, the Ninth U.S. Circuit Court of Appeals is by far a favorite. “Judge shopping” is a little trickier but can be accomplished (see, for instance, here). The plaintiffs need to get their cases assigned to sympathetic judges because these cases are invariably decided based on the bias and opinions of the judge selected.
The cases in this instance were filed by various parties: National Audubon Society; American Bird Conservancy; Center for Biological Diversity; Defenders of Wildlife, the Natural Resources Defense Council, the National Wildlife Federation and various states: State of New York; State of California; State of Illinois; State of Maryland; Commonwealth of Massachusetts; State of New Jersey; State of New Mexico; State of Oregon. The special interest groups have very deep pockets (National Audubon alone had annual receipts of over $83,000,000 in the latest year reported) and the states are spending taxpayer dollars. They know full well that the decision will be appealed, but hope that the November elections will bring a change in the political party that controls the Presidency (who heads the executive branch of government and thus DOI and FWS), or at least Congress.
A bill was proposed in Congress in January 2020 on this topic: HR 5552, “Migratory Bird Protection Act of 2020”. It was assigned to the House Committee on Natural Resources on 15 January 2020 and nothing has happened with it since. It states (in part): “INCIDENTAL TAKE.—The Migratory Bird Treaty Act (16 U.S.C. 703 et seq.) is amended in section 2(a), by inserting “incidentally take,” before “attempt to take,” ” and “”IN GENERAL. — It shall be a violation of this Act for any person to incidentally take a migratory bird as a result of a commercial activity…“. There is a lot more to the bill, but in my opinion, it fails utterly to exempt ordinary citizens from criminal prosecution for the accidental, unavoidable, incidental killing of migratory birds in the normal course of living their lives. Thus, it simply increases the risks of arbitrary and discriminatory enforcement. Ordinary citizens engaged in any commercial activity (anything that is intended to make money) will remain uncertain as to exactly what they must do to protect themselves from arbitrary FWS enforcement and their snitches.
According to the Fish and Wildlife Service, the vast majority of annual bird deaths (as of 2017) are caused by: (these are median estimates)
Cats: 2,400,000,000 (yes, that median estimate is well over two billion).
Collision – Building Glass: 599,000,000
Collision – Vehicles: 214,500,000
Poison: 72,000,000 (by various chemicals)
Collisions – Electrical lines: 25,500,000
All the other usual suspects combined – oil pits, wind turbines, solar power plants – amount to less than one million. FWS cheats a bit in its reporting by combining all but Cats and Vehicle Collisions under one heading “Industry” thus adding up to 709,684,000. Whereas the top three categories, none of which we can do much about in any case — Cats, Buildings, and Vehicles –come to a whopping 3,214,000,000. There doesn’t seem to be any categories for what ordinary citizens would consider “industry” – factories, manufacturing, normal power plants, the building industry (not the product, but the activity), airlines and all else. See here for my response to the major threat.
Rational citizens must wait and see — hoping for some sanity on the subject from the appeals courts.
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I’d like to thank reader Michael Brienesse for bringing the new decision to my attention (via the WUWT Tip line).
Much of what is wrong with many of our reader’s nations is the result of the usurping of legislative authority – law making authority — which is intended to be in the hands of representatives elected by the people — by government bureaucracies and departments of justice (your national government may use a different name). At the European Union level, laws and regulations are passed and enforced almost entirely by non-elected, non-representative bureaucrats.
In far too many cases, these bureaucracies and judgeships are filled with what Bari Weiss recently characterized as “those living in a distant galaxy, one whose concerns are profoundly removed from the lives of most people. This is a galaxy in which, to choose just a few recent examples, the Soviet space program is lauded for its “diversity”; the doxxing of teenagers in the name of justice is condoned; and the worst caste systems in human history includes the United States alongside Nazi Germany” and I will add this bit: “and in which the accidental killing of a bird can be prosecuted as a federal criminal offense, or not, quite arbitrarily.”
Criminalizing unavoidable results of legal actions and activities is, quite bluntly, insane.
Thank you for reading.
Read more, read widely, read critically.
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