Should Every Cat Owner, Car Owner, and Homeowner be a Potential Criminal?

Billions of birds are killed every year in the United States, many of which are protected by the Migratory Bird Treaty Act. Consequently, the reach of that law’s criminal prohibition against “take” is a very big deal. Recently, the question of that reach has risen to prominence as President Trump has criticized the wind industry for creating “bird graveyard[s]” and environmentalists have criticized the oil industry for similar impacts. While it may be politically convenient to focus on disfavored industries, the stakes are far greater for average people, who could face significant criminal penalties for such innocent acts as having a cat, driving a car, or owning a home.

The Migratory Bird Treaty Act, enacted in 1918 to address over-hunting, prohibits “at any time, by any means or in any manner,” pursuing, hunting, taking, capturing, killing, possessing, transporting, or doing many other things to any bird, bird part, nest, or egg of more than 1000 species designated under several treaties. Unlike the Endangered Species Act, which applies to rare species, the birds covered by the Migratory Bird Treaty Act are some of the most ubiquitous avian species.

In December 2017, the Department of the Interior issued a legal opinion interpreting the Migratory Bird Treaty Act’s take prohibition to apply only to purposeful acts to harm protected birds and thereby exclude “incidental take,” which is an otherwise lawful activity that unintentionally harms birds. Under this opinion, you could not be imprisoned if your cat killed a protected bird unless the government proved you got the cat for that purpose. Similarly, you could not go to jail for accidentally hitting a bird with your car or having one fly into your window. This reversed an opinion issued in January 2017, which reached the opposite conclusion.

Prior to 2017, the agency had no formal position, leaving the question to individual prosecutors. During the Act’s first half-century, it was interpreted to apply only to intentional take. But, since the 1970s, some prosecutors have pushed a broader reading, with mixed results. Two federal circuit courts, and a district court in an additional circuit, have upheld convictions for incidental take. However, three federal circuit courts and district courts in two other circuits have held that the act cannot be read so far.

Although the current interpretation replaced a policy that had been in place for less than a year, it has nonetheless received sharp (often over the top) criticism. On Christmas eve, for instance, the New York Times published a story claiming that it all but ended punishment for bird deaths. “Not only has the administration stopped investigating most bird deaths,” the story explained, “it has discouraged local governments and businesses from taking precautionary measures to protect birds” (although the story offered no evidence for the latter claim).

There are important distinctions, often overlooked in environmental debates, between law, policy, and politics. Interpreting a criminal prohibition broadly to reach disfavored industries may be good politics, but that doesn’t make it good policy or law.

The policy implications of this issue are enormous. According to Interior, wind turbines and oil pits cause relatively few bird deaths, with each contributing fewer than one million per year. These sources pale in comparison to the estimated 2.4 billion birds killed by cats each year, 300 million killed by windows, and 200 million killed by vehicle collisions. If the Migratory Bird Treaty Act reaches incidental take, every one of these accidents would be a crime punishable by six months imprisonment and a $15,000 fine per bird. In other words, cat owners could collectively rack up 1.2 billion years of prison time and $36 trillion in fines (roughly double US GDP) every year. By any measure, this would be absurd.

The legal implications may be even more extreme. As Interior’s legal opinion acknowledges, no amount of precaution could insulate folks from prosecution.

It is literally impossible for individuals and companies to know what is required of them under the law when otherwise lawful activities necessarily result in some accidental bird deaths. Even if they comply with everything requested of them by the Fish and Wildlife Service, they may still be prosecuted, and still found guilty of criminal conduct. The absence of clear, public, and binding standards effectively authorizes or encourages discriminatory enforcement, particularly against disfavored industries or persons.

Such consequences are fundamentally at odds with basic notions of due process and fair play. Indeed, these principles require criminal prohibitions to be interpreted strictly against the government, giving defendants the benefit of every doubt. Interpreting the Migratory Bird Treaty Act to reach incidental take flips this standard on its head, allowing crimes to be interpreted broadly to advance policy aims with defendants left to rely on the discretion and good will of prosecutors.

None of this is to deny the importance of addressing threats to birds. According to one study, U.S. bird populations have decreased by an average of 30% over the last 50 years. Overcriminalization is not the only means to address this challenge. As the Times story acknowledges, Interior encourages voluntary measures to protect migratory birds from incidental take, which many states and businesses are undertaking.

More could be done to encourage common-sense steps to protect birds and to encourage activities to boost their populations. For instance, the Nature Conservancy pays Californian rice farmers to create temporary wetlands to aid birds during their migration. Such innovative programs provide clear signals to property owners and businesses about which activities will be rewarded and which will be punished, a signal sorely lacking in a broad interpretation of the Migratory Bird Treaty Act.

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