Domestic Affairs

For The Birds

In 2007, a controversy that kicked off a radical change in conservation law, a multi-state lawsuit, and a pitched legal fight was caused by the most innocuous of objects — a few birds and an oil tank in Corpus Christi.

The tank — located at a coastal oil refinery belonging to Citgo — was used for an oil purification process called sedimentation, where solid particles and water sink to the bottom of a tank, leaving a pure oil slick at the top for collection. This process worked perfectly fine, until one day a few birds flew over the area and decided to alight on the surface of the open-air tank — covering themselves in the oil slick and dying soon after. Citgo was charged for this incident under the Migratory Bird Treaty Act (MBTA), but the company soon appealed to the courts, arguing they could not be charged for a bird death that was the result of happenstance instead of malicious environmental destruction.

The ensuing case, United States v. Citgo Petroleum Corp, was heard by the Fifth Circuit Court of Appeals, which ruled in the company’s favor in 2015. According to the circuit, companies could not be faulted for the unintentional “take,” or death, of birds under the MBTA. This decision, at first an unremarkable case, eventually would lead to an environmental law firestorm — but to understand the story, some topics must be discussed: the origins of the MBTA; the Trump administration’s attempted change to its enforcement; the ensuing court challenge; and the current status of bird protections.

The origins of the MBTA are almost as interesting as the court battle over its enforcement. The need for bird protections arose in the 19th century when the trade of exotic meat and feathers ballooned to the point where it was decimating American bird populations. Multiple species, like the ill-fated passenger pigeon, were wiped out, while many others came close to the brink of extinction — the London feather market is reported to have used feathers from over 130,000 American egrets in nine months.

Slowly, Congress started taking action on the issue and eventually passed the Weeks-McLean Law, a bill that allowed the national government to create hunting seasons for migratory birds, in 1913. However, the bill was seen by many as infringing on the Supreme Court-established ability of states to regulate game within their borders. Only a few years after its passage, the law suffered numerous defeats in federal courts and was set to be tried before the Supreme Court.

With the McLean Law floundering on the legal shoals, conservation advocates developed a new strategy — using the flexibility of the government’s treaty power to establish rules regular laws could not. As a result, the Migratory Bird Treaty Act (MBTA) between the United States and British-controlled Canada was signed. The MBTA was far more strict than the McLean-Weeks Law. According to the Treaty, still in effect today, it is “unlawful to pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, (or) offer for sale…by any means whatever…any migratory bird” that was protected by the convention.

These protections, originally targeting purposeful hunting, were eventually expanded in the mid-1970s to industrial activity that might similarly harm bird populations, even if it didn’t intentionally kill them — activity which was categorized in regulations as “incidental take.” This rule enabled the government to seek massive damages in incidents like the Exxon Valdez and Deepwater Horizon oil spills, but it has recently come under judicial scrutiny, with the Citgo decision being the most recent — and arguably most forceful — pushback from the courts on the concept. 

Despite its legal challenges, the penalization of incidental take was still a massive portion of bird protections, and it was vigorously pursued by agencies under the Obama administration. This practice, however, would be drastically changed once Trump assumed office.

In December 2017, then-Principal Deputy Solicitor of the Department of the Interior, Daniel Jorjani, published a memorandum revising the US Fish and Wildlife Service (USFWS) rules relating to incidental take. This memorandum, referred to in court as the Jorjani memo, advanced an argument that had never been officially asserted — that the MBTA could not be used to punish any form of incidental take.

After invoking numerous court decisions both for and against the concept of incidental take, including the Citgo decision, Jorjani moved onto the text of the Treaty — specifically, the portion declaring it is illegal to “pursue, hunt, take, capture, and kill” migratory birds. Jorjani argued that the words “pursue,” “hunt,” and “capture” are all words that connote intention to harm, and, through the legal principle of noscitur a sociis (or, interpreting words via neighboring words), this understanding of intention ought to apply to the words “take” and especially to the word “kill.” In this light, the word “kill” would be taken in the narrow sense of purposeful killing, rather than being any action that resulted in a death. 

Jorjani continued that the MBTA’s original purpose was solely as an anti-hunting measure, and that the Treaty’s extension to encompass industrial activity was a distortion of the bill’s language. Finally, Jorjani closed the memo by stating the scope of the incidental take regulations were too broad, and that any number of actions — including actions as mundane as letting a cat roam outside or, as the Fifth Circuit argued, ringing church bells — might be punishable under existing incidental take penalties. Altogether, in Jorjani’s opinion, the bill’s connotation of intention, its original purpose, and its wide range of applications served to invalidate its penalization of incidental take.

The Jorjani memo and the accompanying change in USFWS guidance immediately became the subject of lawsuits filed by a number of environmental groups, as well as eight states, all of which were consolidated into one case decided this past August by Judge Valerie Caproni of the Southern District of New York (SDNY). According to Judge Caproni, the memo could only legally stand if it had the “power to persuade” the court of its necessity — and, in her decision against the administration, it became clear that the Judge did not feel particularly “persuaded” by Jorjani’s argument. 

Over the course of the judgment, the court rebutted the noscitur-based interpretation of the word “kill,” saying that the noscitur principle should only reduce uncertainty in interpretation, instead of increasing it by adding new, alternative definitions to the law’s text. Similarly, the court argued against Jorjani’s invocation of “absurd” applications of the law, saying that the MBTA, as interpreted before the memo was released, allowed for reasonable case-by-case interpretation of whether actions resulting in bird killings ought to receive a misdemeanor charge.

However, the most interesting part of the case came when Judge Caproni invoked the Bostock case — yes, that Bostock case, Bostock v. Clayton County, written by Judge Neil Gorsuch for the Supreme Court this summer. As might be recalled, Bostock, often described as a landmark civil rights case, extended federal anti-discrimination protections to gay and transgender people.

So what, then, might be the linkage between gay rights and bird conservation? It all lies in how Caproni, an Obama appointee, applies textualism — as legitimized through the Bostock decision — to her interpretation of the MBTA. 

In a sense, the MBTA was a microcosm of the ongoing philosophical clash between textualism, the interpretation of laws according to strict dictionary definitions of their terms — and originalism, the use of the law’s context to determine how to interpret it. The Jorjani memo’s originalism-focused argument — that the MBTA was originally an anti-hunting measure and should only be read as that — is quite similar to other originalist arguments, including that advanced by Judge Alito in his dissent to Bostock, in its reliance on legal context. However, in both the MBTA case and Bostock, the textualist argument — focused just on defining the words within the law — won the day, expanding protections just by analyzing the language of the text.

Judge Caproni invokes the Bostock case numerous times over the course of the MBTA decision, even directly quoting from Gorsuch’s opinion that “the people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.” Through a textualist interpretation, the wording that it is illegal to “kill (a migratory bird)…by any means” means just that, whether the “killing” in question is intentional or an aftereffect.

After arguing against the Jorjani memo’s different arguments, Judge Caproni finally vacated the memo, removing it from usage by the USFWS.

The Jorjani memo is no longer employable by the government, but, regardless of the interesting legal battle surrounding its removal, the actual status quo of migratory bird protections is not changed. As Benjamin Cowen writes, the Obama administration’s strengthening of “incidental take” was not nationally restored through the Caproni decision. Rather, Caproni’s guidance on the definition of incidental take is only binding within the borders of the SDNY. In areas where the courts have narrowed the application of incidental take (like Texas, Louisiana, and Mississippi — all administered by the Fifth Circuit), those rulings are still in effect, and developers will benefit as a result. A bill attempting to insert language that explicitly penalized incidental take into the MBTA was introduced in the House this January, but it appears to have no Senate counterpart, meaning the effort will likely go nowhere. Finally, even though the Jorjani opinion has been vacated, the Trump administration could still lean on the Citgo decision to implement restrictions on incidental take enforcement.

Despite the sound and fury about the MBTA and the Jorjani memo, no true progress has been made in interpreting the MBTA, leaving both sides — conservationists and developers — uncertain as to what is permitted and whether or not the law is on their side. Meanwhile, despite the usage of incidental take regulations, the situation is increasingly grim for birds; more than a quarter of the American bird population has vanished since the 1970s, despite the implementation of incidental take rules during that time.

Until the issue of incidental take is settled, it appears that the MBTA will continue to be a particularly contentious environmental-law issue. The only certainty is that the arguments to come, no matter what form they take, can be classified as only one thing — for the birds.

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