MORE THAN BIRDS: DEVELOPING A NEW ENVIRONMENTAL JURISPRUDENCE THROUGH THE MIGRATORY BIRD TREATY ACT.

AuthorMaroun, Patrick G.
PositionNOTE

This year marks the centennial of the Migratory Bird Treaty Act, one of the oldest environmental regulatory statutes in the United States. It is illegal to "take" or "kill" any migratory bird covered by the Act. But many of the economic and industrial assumptions that undergirded the Act in 1918 have changed dramatically. Although it is undisputed that hunting protected birds is prohibited, circuit courts split on whether so-called "incidental takings" fall within the scope of the Act. The uncertainty inherent in this disagreement harms public and private interests alike--not to mention migratory birds. Many of the most important environmental statutes are also aging and may soon face similar interpretive issues. This Note argues that, to address inherent problems with aging environmental statutes, courts should adopt a jurisprudential preference for fidelity to each statute's purpose.

TABLE OF CONTENTS INTRODUCTION I. ONE HUNDRED YEARS OF LEGAL BATTLES A. The Advent of National Conservation and the Act B. The Split and the Stakes II. EXISTING INTERPRETATIONS A. The Second and Tenth Circuits B. The Ninth and Eighth Circuits C. The Fifth Circuit D. Construing the Act III. A NEW JURISPRUDENTIAL PREFERENCE FOR AGING ENVIRONMENTAL STATUTES CONCLUSION INTRODUCTION

"Let the song bird live to herald to the world its happy and joyous anthem .... Civilization, ever advancing along the world's pathway, pleads for humanity, for the birds, so helpless and yet so useful."

--Congressman Charles Manly Stedman, 1918 (1)

In 2006, CITGO Refining and Chemicals Company and its Environmental Manager, Philip Vrazel, were indicted on five counts of violating the Migratory Bird Treaty Act, 16 U.S.C. [section] 703 (2012) (the "Act"). (2) The government alleged that CITGO's operation of open-air petroleum tanks and Vrazel's failure to alter this operational arrangement exposed migratory birds to life-threatening danger, resulting in the deaths of dozens of protected birds. (3) After a bench trial, the defendants were convicted of three counts of violating the Act, and the court fined CITGO $45,000. (4) On appeal, CITGO argued that their business operations, though resulting in the deaths of protected birds, did not constitute a "taking" within the meaning of the Act because their conduct was not directed at migratory birds. (5) Although the Fifth Circuit ultimately reversed the district court and vacated the convictions, it acknowledged that there was legal authority to support both the broad interpretation supported by the government and the narrow interpretation urged by CITGO. (6)

In May 2015, while CITGO's appeal was pending before the Fifth Circuit, the Fish and Wildlife Service issued a Notice of Intent "to prepare a programmatic environmental impact statement ... to evaluate the potential environmental impacts of a proposal to authorize incidental tak[ings] of migratory birds under the Migratory Bird Treaty Act." (7) A year-and-a-half later, in the waning days of the Obama Administration, the Department of the Interior issued a memorandum opinion that indirect takings were prohibited under the Act. (8) The memorandum criticized the Fifth Circuit's construction of "take" as "erroneous[]." (9) With two of the five circuit court opinions on the scope of the Act coming during the Obama Administration, (10) the agency's guidance signaled a potential acceleration of federal prosecutions under the Act. But it was not long lived.

Less than a month later, Acting Secretary K. Jack Haugrud ordered a temporary suspension of the guidance, pending the Trump Administration's review. (11) On December 22, 2017, "[i]n light of further analysis of the text, history, and purpose of the MBTA, as well as relevant case law," the guidance was permanently withdrawn and replaced with new guidance finding that the Act "appl[ies] only to affirmative actions that have as their purpose the taking or killing of migratory birds." (12) On April 11, 2018, the new guidance officially went into effect. (13) All this happened without any substantive change to the underlying law, and, without definitive construction of the Act by the Supreme Court, could be reversed yet again at the political whims of future administrations. Waffling back and forth for the foreseeable future is unacceptable. Uncertainty in the law not only endangers migratory birds but also inhibits government environmental agencies from carrying out their duties and private businesses from carrying out their everyday activities (14)--both those that have obvious global environmental impacts and those that have less obvious environmental import. (15) In short, the stakes are too high.

Moreover, the Trump Administration guidance does not preclude state officials or the Justice Department from prosecuting incidental takings. (16) Short of an amendment to the law--a task well outside Congress's short list of agenda items--only the Court can bring a definitive end to this conflict.

This Note argues that clarifying the proper interpretation of the Act is an opportunity to develop a new jurisprudential framework for analyzing environmental protection statutes. Part I discusses the Act's background in the American conservationist movement of the late nineteenth and early twentieth centuries and suggests that as environmental statutes age they will face similar interpretive issues. Part II frames incidental takings as being composed of two axes--directness and intent. It then discusses the strengths and weaknesses of the existing interpretations of the Act, ultimately finding a relatively narrow interpretation most in line with the Act's intent and purpose. Part III describes the need for a new jurisprudential preference for preserving the purpose of aging environmental statutes.

  1. ONE HUNDRED YEARS OF LEGAL BATTLES

    The Act's regulatory reach is important because it affects the conduct of businesses and public-private partnerships. As with any conduct-regulating law, the fundamental question is exactly what conduct the Act intends to proscribe. To better understand the contours of this question and why it has created such disagreement between the courts, Section I.A briefly covers the history of the American conservation movement leading up to the Act; Section I.B introduces the split in authority; and Section I.C discusses how the controversy over the Act foreshadows future problems in environmental law.

    1. The Advent of National Conservation and the Act

      By the late nineteenth century, the American conservation movement was gaining steam. (17) As early as 1896, the Supreme Court recognized the importance of protecting certain animals. In Geer v. Connecticut, the Court found that game animals were the collective property of the public to be held in trust by the states. (18) Soon after, Congress made several attempts to protect bird populations with national legislation. (19) Yet these efforts did not go unimpeded. They ran head-on into the demands of American westward expansion, industrialization, and women's fashion (20)--bird populations in the East had already been damaged by the demands of haute couture. (21) By the early twentieth century, improved infrastructure and refrigerated railcars connected hunting grounds in the western United States with urban markets in the east, augmenting the financial incentives to hunt. (22) Conservationists seemingly won a monumental victory with the enactment of the 1913 Weeks-McLean Act, (23) which "attempted ... to regulate the killing of migratory birds within the States," but it was soon struck down by two separate district courts in 1914 and 1915. (24) Opponents of Weeks-McLean successfully argued that "Congress had no power to displace" the "control" over game-hunting regulations reserved to states by Geer, (25) transforming Geer from a victory into a barrier to nationwide conservation efforts. (26)

      In response to these court decisions, Congress looked for another way to protect migratory birds. The result was a 1916 treaty with the United Kingdom. Congress acted on its duties under the treaty by enacting a law even more ambitious than Weeks-McLean. (27) This game of legal "chicken" culminated in Holland v. Missouri. (28) But this time, the Court only considered whether Congress's actions were valid under its treaty powers and did not articulate the scope of the Act's prohibitions. (29)

      Nearly sixty years later, the Western District of New York (30) and the Second Circuit addressed this question in United States v. FMC Corp. (31) Over the next four decades, four more courts of appeals have weighed in. Today, there are three distinct interpretations of the Act. (32)

    2. The Split and the Stakes

      In the century since its enactment, the Act has significantly alleviated the dangers to protected bird populations from hunters and poachers. (33) But today, protected birds are much more likely to be killed indirectly by "anthropogenic threats"--aspects of modern human life that, despite their benign purposes, have harmful effects on birds (34)--than by hunters or poachers. (35) In light of the changing industrial landscape and the impact of modern innovations on the environment, some courts have adopted a broad construction of the Act. This approach leans heavily on the Act's purpose to protect birds from the economic and environmental pressures of modern society. (36) Other courts prioritize commitment to the specific conduct the Act's drafters would have had in mind in 1918. (37) Because the economic incentives and relatively limited industrial technology of the early twentieth century induced large-scale hunting of birds, rather than the proliferation of indirect "anthropogenic threats," a focus on Congress's intent leads to a narrower interpretation of the Act.

      The disposition of this question affects the advancement of industrial projects and the degree of protection that migratory birds enjoy. A broader construction of the Act reaches conduct with a...

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