A year ago almost to the day, in one of the early blogs I wrote for Indivisible Berks, I talked about Martha the last passenger pigeon. Passenger pigeons once existed in such large numbers that there are historical records of them darkening the sky for hours as they flew by. But in the span of just decades the number of pigeons went from billions to zero. Martha and the rest of her species went extinct in 1914, an event that was due to over-hunting by humans and most likely completely avoidable. Not long after in 1916, The Migratory Bird Treaty Act between the U.S. and Great Britain (acting on behalf of Canada) was enacted then codified in 1918. Its purpose was simple: to protect birds from humans. To be more specific, it protects birds from being hunted for their feathers, which were in huge demand due to ladies’ fashions of the day.
Fast forward 100 years. The Migratory Bird Treaty Act of 1918 is still in place to protect birds from over-hunting, but it won’t protect our avian friends from the Trump Administration. Birds of all feathers now have a serious predator in Interior Secretary Ryan Zinke. Zinke is “reinterpreting” the law (I’m feeling generous) and his new interpretation could have serious consequences.
There have been numerous books written and I’m sure countless law school courses on the theory of legal interpretation. Interpretation is inherent in the way law is practiced in this country and in many others. But there’s a big difference between interpretation and distortion. Take, for example, a recent response I received from Senator Toomey’s office. The letter I sent called on him to ask for the resignation of Scott Pruitt. The response I received was a diatribe about “excessive” regulations and how they’re hindering business, and “impeding job creation”, and blah, blah, blah. “I have been encouraged by Administrator Pruitt's commitment to undo Obama-era regulations that imposed onerous compliance costs and undermined economic growth,” Toomey wrote. Then he (or the staffer who typed it) predictably brought up the Waters of the US rule, which is harming Pennsylvania farmers according to Toomey and “would have placed federal bureaucrats in charge of practically every irrigation ditch, isolated pond, and non-navigable waterway across the state.”
Toomey’s description of Waters of the US’s mandate is completely false, but many people subjected to the law such as ranchers and developers have been parroting his line. Last February as Trump was overturning the Obama era rule, NPR’s Morning Edition interviewed Ellen Gilinsky, an EPA employee. “There's a lot of bloodshed over this rule that didn't need to be,” she said. Gilinsky has travelled the country talking to farmers and ranchers finding that the law is misunderstood and not as onerous as some would have them believe. It’s all a matter of misinterpretation.
Getting back to Ryan Zinke. Like his cronies Scott Pruitt and Ben Carson, Zinke is also spending recklessly with $139,000 in tax payer dollars to replace office doors and using costly charter and military flights for travel. In spite of the fact that he’s head of the Department of the Interior whose mission is “protecting America’s great outdoors”, Zinke’s been reassigning senior Department of Interior officials because of their stance on climate change. What I’m trying to say is despite all the time he spends in state parks, Zinke’s no boy scout.
The Migratory Bird Treaty Act has protected more than 1,000 species of migratory birds like chickadees, indigo buntings, and harlequin ducks. Under the law, it’s prohibited to trap, kill, or possess these wild birds without proper permits. Violations of the law can lead to fines or as much as 6 months in jail.
Just before he left office in January 2017, President Obama revised the treaty to include “incidental wounding, killing, or trapping” of birds as well as intentional acts. An incidental wounding or killing could include an event like a bird flying into a wind turbine and suffering fatal injury or being trapped in an oil waste pit. In terms of interpreting law, previous administrations often prosecuted industries for similar violations, but the Obama administration in a more formal move issued a legal opinion on the matter.
In the Trump administration’s reversal, accidental actions that lead to migratory birds being killed will no longer be considered illegal. “Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed,” said Daniel Jorjani, the Interior Department’s principal deputy solicitor and a former Koch brothers adviser
One of Zinke’s main gripes is that the Obama interpretation unfairly targeted the fossil fuel industry over green energy. “Every energy source has its consequences,” Zinke said at a Senate energy committee hearing after Sen. Catherine Cortez Masto (D-Nev.) asked why the administration is looking to cut funding for renewable energy projects. “Wind chops up birds,” he said. But David O’Neill, chief conservation officer at the Audubon Society said, “You can’t be against renewable energy, wind and solar, if you are for protecting birds. And you can’t be for protecting birds and be willing to effectively gut the Migratory Bird Treaty Act. While wind energy is a fairly minor contributor to bird mortality, climate change poses a massive threat.” The Audubon Society noted in a 2014 report that “more than half of North American bird species could lose more than 50 percent of their current range by 2080 because of climate change.”
I’m not sure what it is exactly that Zinke has against birds. Maybe he watched too many Hitchcock movies as a kid. Don’t forget, this is the same guy who reversed the federal ban Obama issued the day before Trump’s inauguration on using lead ammunition in national parks and wildlife refuges, which scientists say kills up to 20 million birds and animals each year because of lead poisoning.
Sensing a trend here? The current administration seems to live by the “If Obama did it, repeal it” mantra. And when it comes to interpreting the law, Zinke, Pruitt and their respective departments are taking great liberties with the environment. But remember, they were hired by the guy who says climate change is a Chinese hoax. Pardon the cliché, but you know what they say-birds of a feather…
posted by Amy Levengood
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