Last week, the Department of the Interior (DOI) took a little-known but important step to undo an eleventh-hour expansion of the law by the Obama Administration. In a memorandum issued January 10, 2017, the DOI Solicitor determined that the Migratory Bird Treaty Act (MBTA) prohibits the accidental or "incidental" taking of migratory birds. The practical effects of this opinion were very broad, but fortunately it was suspended pending review on February, and the DOI Solicitor officially rescinded it last Friday.
The opinion analyzes in detail the history, caselaw, and relevant interpretive guidance for this provision, before concluding by outlining the serious constitutional and rule of law problems with the January 10 opinion (internal footnotes omitted):
The Supreme Court has recognized that "[a] fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required." "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Accordingly, a "statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." . . . Assuming, arguendo, that the MBTA is ambiguous, the interpretation that limits its application to affirmative and purposeful conduct is necessary to avoid grave constitutional infirmities. . . . Further, if the MBTA is ambiguous, a narrower construction of the MBTA is consistent with the rule of lenity. . . .
The opinion then notes that the January 10 interpretation would extend criminal liability to nearly every American (emphasis added):
The "scope of liability" under an interpretation of the MBTA that extends criminal liability to all persons who inadvertently or accidentally kill or take migratory birds incidental to another activity is "hard to overstate" and "offers unlimited potential for criminal prosecutions." "The list of birds now protected as 'migratory birds' under the MBTA is a long one, including many of the most numerous and least endangered species one can imagine." Currently, over 1000 species of birds - "nearly every bird species in North America" - are protected by the MBTA. According to the U.S. Fish and Wildlife Service, the top "human-caused threats to birds" are:
- Cats, which kill an estimated 2.4 billion birds per year;
- Collisions with building glass, which kills an estimated 303.5 million birds per year;
- Collisions with vehicles, which kill an estimated 200 million birds per year;
- Poisons, which kill an estimated 72 million birds per year;
- Collisions with electrical lines, which kill an estimated 25 million birds per year . . . .
Interpreting the MBTA to apply strict criminal liability to any instance where a migratory bird is killed as a result of these "human-caused threats" would be a clear and understandable rule. It would also turn every American who owns a cat, drives a car, or owns a home--that is to say, the vast majority of Americans--into a potential criminal. Such an interpretation would lead to absurd results, which are to be avoided.
The opinion then notes that reliance on prosecutorial discretion to avoid abuses of the law does not cure the constitutional concerns:
This is the epitome of vague law. Under this approach, 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. In sum, due process "requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement."' Current governmental practice suggests that the application of the MBTA to incidental activities fails to satisfy this requirement. As the Supreme Court has recognized, "[w]ell-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law."
We are grateful that the Trump DOI, led by Secretary Ryan Zinke and the Office of the Solicitor, has seriously analyzed the MBTA and respected the rule of law and its basic requirement of fair notice, instead of bowing to pressure from radical environmental organizations that would turn nearly all Americans into criminals.