WC watched thousands of migrating Snow, White-fronted and Canada Geese along the Snake River last weekend. They are on their way to the northern edge of North America to breed. They stop in southwest Idaho to rest and forage. Those Geese are exactly the kind of bird the Migratory Bird Treaty is intended to protect: birds whose seasonal migration or irruption takes them across international boundaries.
Under Article VIII of that Treaty, the United States pledged to enact laws implementing the Treaty. And in 1918, Congress did just that, enacting the Migratory Bird Treaty Act. It’s been on the books for a hundred years now. The statute is an absolute prohibition on the killing of birds. The statute doesn’t distinguish between killing birds through negligence or by intent; it is simply forbidden. There is a statutory process for waiver, but waivers aren’t commonly granted, because the idea is not to kill migratory birds. For decades, since at least the Nixon Administration, the law has been interpreted to apply to reckless and negligent conduct, not just intentional acts.
The statute has been used in the Exxon Valdez and Deepwater Horizon oil spills, to force tar sands oil producers and others to cover waste water pits, and to regulate siting and operation of wind farms in migratory bird corridors.
At least until December 22, 2017. Then a Koch Brothers flunky named Daniel Jorjani, appointed by President Trump as “Principal Deputy Solicitor for the Secretary of the Interior” – Ryan Zinke’s Number Two attorney – issued an opinion purporting to undo all of that precedent. It’s an intellectually dishonest opinion and analysis – Jorjani pretends there is no middle ground between “accidental” and “intentional.” That’s nonsense. Negligence, gross negligence and reckless are all widely known, long-recognized legal standards. And then Jorjani concludes the penalties are so drastic – six months in the slammer and a $15,000 fine – that it would be unfair to penalize anything but an intentional violation.
That’s a false premise fallacy, a non sequitur fallacy and a post hoc fallacy, all in a single opinion. It would be impressive if it weren’t so consequential. It’s pretty much what you’d expect if a “key Koch employee” were to write an opinion on something the Koch Brothers disagreed thought might limit their ability to make even more obscene amounts of money. Because the fixes for the primary causes of human-caused bird mortality aren’t hard or expensive. Probably less than the Koch Brothers’ annual campign contributions.
It isn’t just WC who thinks that Jorjani’s Koch-flavored opinion is a steaming pile of cow dung.
On January 10, 2018, seventeen past Deputy Secretaries, Assistant Secretaries of the Interior, U.S. Fish and Wildlife Service Directors, and Migratory Bird Conservation Chiefs, former Senate-confirmed political appointees, of Republican and Democratic Presidents, as well as former career civil servants, wrote a letter eviscerating Jorjani’s lame opinion and explaining just how wrong-headed and evil it is. Some of the seventeen signers go back to 1972.
The letter tells Secretary Zinke that the authors “await his response.” I hope the authors aren’t holding their breath.
500 conservation organizations, representing all 50 states, have written to Congress asking them to adopt laws reversing Jorjani’s opinion. Please add your voice.