Congressman Alan Lowenthal (CA-47), joined with House colleagues Brian Fitzpatrick (PA-01), Raúl Grijalva (AZ-03), Francis Rooney (FL-19), and 48 other House Members in calling on the Trump Administration to abandon proposed regulatory rulemaking reinterpreting a century-old law protecting more than 1,000 species of migratory birds across North America. Their letter to U.S. Department of the Interior (DOI) Secretary David Bernhardt follows a recent federal ruling that found the administration’s reinterpretation efforts were unlawful. The administration’s reinterpretation of the Migratory Bird Treaty Act (MBTA), based on a 2017 DOI Solicitor’s Opinion, would remove the ability of the U.S. Fish and Wildlife Service (FWS) to mitigate incidental bird deaths due to industrial or commercial activities.

In the bipartisan letter to Secretary Bernhardt, the Members of Congress wrote that the federal court ruling, “…unambiguously found that the legal rationale and the outcome of the [DOI] Solicitor’s Opinion does not align with the law that Congress passed and intended. Congress passed the MBTA, and the United States signed four bilateral migratory bird treaties, in order to broadly protect and conserve our nation’s bird populations. Moving forward with a regulation that continues to avoid and undermine this obligation is not a viable path forward.”

The MBTA has been used for decades to mitigate, through permitting of industrial and commercial activity, incidental bird deaths. Even when these deaths have not been avoided, the MBTA has been a critical tool to invest the penalties toward the recovery of impacted species. The MBTA fines from the Deepwater Horizon oil spill, which killed more than one million birds, resulted in $100 million for wetland restoration to benefit waterfowl and other birds through the North American Wetlands Conservation Act.

The Members also point out, “We believe that there is fundamentally a lack of legal and stakeholder support for the current policy. It is not a sustainable position for the law, or for our bird populations. Fortunately, there is a better path forward. We do not have to choose between conservation or regulatory certainty. While we believe that the Fish and Wildlife Service (FWS) has struck a reasonable balance in implementing the law over the decades, FWS can pursue a framework for incidental take that aligns with the conservation intent and language of the MBTA, which provides additional legal certainty for entities.”

The Members’ letter concludes, “We urge the Department of the Interior abandon its current rulemaking and consider an approach that not only regulates incidental take but establishes a general permitting framework to encourage the implementation and creation of best management practices by industry.”

The members also demand answers to four questions from DOI, including:

  • Will FWS rescind its guidance memo, issued April 11, 2018, which implements the now-vacated Solicitor’s Opinion?
  • Will FWS rescind its memo, issued June 14, 2018, titled “Destruction and Relocation of Migratory Bird Nest Contents”, which relies on the now-vacated Solicitor’s Opinion?
  • How is FWS responding to requests from tribes that it engage in government-to-government consultation before it advances a regulation any further?
  • How will FWS acknowledge and respond to the objections raised by Canada, states, and flyway councils, among other stakeholders, in regard to its proposed rule and draft EIS?

To see the full list of signatories and read the full text of the letter, please click here.

In addition to the 52 Congressional signatories, the letter was also supported by numerous conservation and wildlife groups.

“We’re glad to see these members of Congress stand up for birds and the Migratory Bird Treaty Act,” said Erik Schneider, policy manager for the National Audubon Society. “Since 2017, the rollback of this 100-year-old law has received bipartisan opposition, it has been overturned in court, and the government’s own environmental impact statement shows the rollback will harm bird populations, at a time when they’re facing long-term declines and threats from climate change. The best course of action would be for the administration to drop its new attempt to weaken the law and join these members of Congress, and more than 25 states, numerous tribal governments, scientists, sportsmen, birdwatchers, and 250,000 people calling for bird protections to be upheld.”

“Thank you to Reps. Alan Lowenthal (D-Calif.), Francis Rooney (R-FL), Brian Fitzpatrick (R-PA) and Raul Grijalva (D-AZ) and their colleagues for their commitment to protecting the nation’s migratory birds,” said Jamie Rappaport Clark, CEO and president of Defenders of Wildlife. “Now that the courts have weighed in, Department of the Interior Secretary Bernhardt should drop his illegal attempt to eliminate Migratory Bird Treaty Act protections and, instead, pursue a rulemaking that conserves wildlife while providing regulatory certainty.”

“The Trump Administration’s reckless rollback of long-standing protections for migratory birds needs to stop now,” said Josh Axelrod, senior advocated at NRDC (Natural Resources Defense Council). “The legal basis for this senseless rule has already been thrown out in court. Today, we’re standing alongside our Representatives in urging Secretary Bernhardt to withdraw this harmful rule and institute a legitimate rulemaking that achieves conservation gains and ensures the certainty industry needs.”