Montana Audubon

Montana Audubon works at the local, state and national policy levels to protect our natural heritage.

Another Big Win for Conservation!

Landmark Ruling for Migratory Bird Treaty Act

After years of making our voices heard, conservationists nationwide received a landmark ruling from a U.S District Court in New York, denying the Department of Interior’s attempt to reinterpret the concept of “incidental take” under the Migratory Bird Treaty Act (MBTA).

The judge’s August 11th ruling, in a case brought by eight states and multiple conservation organizations, landed with an applause of wingbeats, and it’s worth taking a moment to think about what this victory means. In the U.S District Judge, Valerie Caproni, opinion, the Department of Interior’s (DOI) interpretation of “incidental take” is contrary to the intent of the century old law. The ruling upheld the interpretation that incidental take, think actions, threats or activities creating indirect sources of bird mortality (wind farms, etc.), is prohibited by the Migratory Bird Treaty Act, unless by permit, whether intentional or not; an interpretation that has operated as the status quo and basis for misdemeanor prosecution since the 1970’s. 

Undercutting the DOI’s efforts, the judge noted the recency of the opinion alone as a stark departure from the law’s usage over time. As another hard cut to the DOI effort, the judge reminds us that the MBTA’s purpose at heart is to protect migratory bird populations, and killing them intentionally or not is not in the best interest of our nation’s people or its ecosystems.

As the MBTA historically comes down on the side opposite of oil and gas companies, it’s no surprise that at this moment, weakening the law would push forward projects on both public and private land. But we know from experience when incidental take reaches intolerable levels, industry, our communities, and our bird populations suffer. That is why having a strong incentive for industries to avoid incidental take continues to be a strongly supported component of the MBTA.

While we file this decisive step, both positive and negative actions continue to wrangle at the MBTA’s edges. Still in the House, the Migratory Bird Protection Act seeks to bolster the MBTA by clarifying the role of incidental take (in-line with the judges ruling). Meanwhile the DOI still holds that incidental takes allows the MBTA too far a reach, and is seeking a way to codify that unsupported belief.

You can read the Judge’s full opinion HERE…

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