Forum Index > Public Lands Stewardship > Federal Prosecution for hitting a bird with your car?
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MtnGoat
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PostThu Feb 06, 2020 7:25 pm 
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Tom wrote:
Once you peel back the layers it's fairly clear it has nothing to do with individuals, the title of this thread, the title of the article you linked to, or the premise of the article.  More about industry lobbying for fewer restrictions.  Whether you agree with the law or not, Sluggo nailed it.  Thinly veiled politics.  But it's what you do. rolleyes.gif

If politics concerning regulation where an issue, I'd expect an entire section of the site to be locked.

It's pretty clear once you peel back the layers that the chief objection to some threads is more of a personal issue, seems to me. After all, we first saw a complain about their graphic on the basis of a principle I have never seen applied anywhere on this site, ever, regardless of source.

Then, we have this claim that discussing regulation is thinly veiled politics...which is what any regulatory discussion is.

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Tom
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PostThu Feb 06, 2020 7:34 pm 
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Yes, it's just an excuse to post politics which is not allowed here.  What am I missing?  Has nothing to do with a anyone hitting a sparrow with their car.
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Bernardo
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PostThu Feb 06, 2020 9:02 pm 
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This weekend while I was driving to hike, a hawk of some kind swooped just feet from my windshield.  I think it was gliding in to pounce on something on the other side of the road.  It paid no notice to me and my car and was completely focused on the attack.  It must take a lot of concentration to catch prey to eat, but that focus alnost cost thus bird it's life. It happened in an instant, but I got a rate good look of a wild bird of prey.
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PostThu Feb 06, 2020 9:42 pm 
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^ Red-Tail hawks perch on the light poles along the freeways to spot mice and other critters whose homes are in the freeway medians. I see them quite often on the 6th Avenue on-ramp to eastbound Hwy 16.

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catsp
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PostThu Feb 06, 2020 10:07 pm 
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I can't speak for OP's intentions in starting this thread, and can't speak for OP's choice of source material for the first post. But on the actual substance of the underlying issue (very broad vs. more narrow interpretation and enforcement of a law concerning the protection of migratory birds that provides for the imposition of criminal penalties), it seems no less related to land use than many of the threads in the Public Lands Stewardship sub-forum, and no more political than many of those same threads as well.

And on that substance, I believe one can be against such a broad interpretation of the MBTA as existed pre-2017, yet still be in favor of protecting migratory birds (and other wildlife) through other means.
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Tom
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PostThu Feb 06, 2020 10:31 pm 
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Well, it wan't posted in Stewardship.  First thing that seemed odd was why a "climate news" blog was posting that opinion piece.  Then again they are a clearing house for think tank news.  One concern is raised in the American Bird Conservancy quote that Randy posted:

American Bird Conservancy wrote:
At 100, Successful Law is Under Attack
In a legal opinion issued December 2017, the Administration abruptly reversed decades of government policy and practice — by both Democratic and Republican administrations — on the implementation and enforcement of the MBTA. The Act's prohibition on the killing or "taking" of migratory birds has long been understood to extend to “incidental take” — meaning unintentional, but predictable and avoidable, killing from threats such as oil pits that trap birds, and tall towers and power lines responsible for many bird collisions. Under the Administration's revised interpretation, the MBTA's protections will apply only to activities that purposefully kill birds. Any incidental take — no matter how inevitable, avoidable, or devastating its impact on birds — is now immune from enforcement under the law.

Other dissenting opinions:

The Migratory Bird Treaty Act, Explained

17 Former Federal Officials to Zinke: Don't Change the Migratory Bird Treaty Act

More than 500 Organizations in All 50 States Urge Congress to Defend Bird Protection Law
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Malachai Constant
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PostThu Feb 06, 2020 11:50 pm 
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Just trolling by the usual suspects for the usual reasons. huh.gif

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PostFri Feb 07, 2020 12:04 am 
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gives y'all somethin' to do when the weather's so crappy! lol.gif

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Kascadia
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PostFri Feb 07, 2020 12:20 am 
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Introduced January 8, 2020

https://www.govtrack.us/congress/bills/116/hr5552

And Audubon's reporting on the bill:

https://www.audubon.org/news/audubon-congress-must-pass-new-bird-protection-bill

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Pyrites
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PostFri Feb 07, 2020 11:14 am 
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I’ve got a brother who forwards Watts Up stuff when he’s been drinking but is still able to stand up.

Writes high on rant, low own reason, material.

He doesn’t meet current standards for science writers of disclosure of funding sources.

Best.
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catsp
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PostFri Feb 07, 2020 12:33 pm 
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There's really a few related but different issues here. One is whether the MBTA, as written, is too overbroad. If it includes all incidental take (as some suggest), I'd say yes. Making every single bird kill a federal crime is just a bit too far for me (*of course this is an overstatement because not all birds are protected by the MBTA and for some kills there is no human action responsible, but I like the sound and presumed impact of "every single"). Some people are apparently okay with an incredibly over broad (interpretation of) law that criminalizes their own behavior because they're confident they won't actually be prosecuted. In truth, I'm not particularly concerned myself with prosecution for accidentally collecting migrating birds in the grill of my car. But I do have concern with (an interpretation of) a law that puts so much power and discretion into the hands of a prosecutor.

But that begs the question of whether the MBTA, as written, actually includes all incidental take. The law hasn't changed (yet) - just the interpretation of it by the DOI. Glancing through some of the source material linked here, it seems to me that the current (2017+) interpretation has the better argument. So while it may be an unpopular opinion with many, I'd suggest that the current interpretation has it correct, and that the MBTA simply does not extend to incidental take. (Interestingly, it appears that what some indicate as the "consistent" interpretation of the MBTA may be overstatement. According to the DOI memorandum M-37050, the first federal prosecution on the grounds of incidental take was only about 50 years ago. It also appears from that same memorandum that the pre-2017 interpretation was not universally recognized as accurate by the courts.)

In any event, the MBTA doesn't actually prohibit killing birds. It really only prohibits killing birds without government authorization. Needing to secure that authorization puts the government in a great position to demand and extract concessions for bird kill mitigation from an applicant. And I presume that's what we're really most interested in: the proper balance between (moral, societal, environmental and other costs of) incidental bird kills and (generally speaking) commercial activity. Because we should be clear about one thing: even under the pre-2017 interpretation it was not about stopping all incidental bird kills, just mitigating the incidental kills from industry to an acceptable level (which apparently is at least in the tens of millions). For many, whether the MBTA actually intended to, and by its text actually does, include incidental take is, well, incidental to having the MBTA as a powerful cudgel to wield against industry for extracting concessions. Though I can understand the desire to keep even an illegitimate tool one believes works (or because that's all one has), I simply disagree.

But I have no issue in principle with holding industry responsible for the incidental effects of their activities, including incidental bird kills. It appears that's what the proposed MBPA (referenced a couple posts above) will attempt to do.
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MtnGoat
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PostFri Feb 07, 2020 12:51 pm 
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And that's perfectly reasonable, and reforms which make it impossible be used against individuals with respect to accidents are good ones. Improving law so often means focusing it.

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Cyclopath
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PostFri Feb 07, 2020 12:54 pm 
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catsp wrote:
Some people are apparently okay with an incredibly over broad (interpretation of) law that criminalizes their own behavior because they're confident they won't actually be prosecuted. In truth, I'm not particularly concerned myself with prosecution for accidentally collecting migrating birds in the grill of my car.

Of all the things to worry about or put energy into changing, the worry that federal detectives are going to track you down for hitting a finch with your car isn't even in the top thousand.
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Tom
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PostFri Feb 07, 2020 1:49 pm 
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Why do you think they re-wrote the law among all other priorities?  Concern over individual liberties?  The terms hoodwinked and bamboozled come to mind.
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catsp
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PostFri Feb 07, 2020 1:55 pm 
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Cyclopath wrote:
catsp wrote:
Some people are apparently okay with an incredibly overbroad (interpretation of) law that criminalizes their own behavior because they're confident they won't actually be prosecuted. In truth, I'm not particularly concerned myself with prosecution for accidentally collecting migrating birds in the grill of my car.

Of all the things to worry about or put energy into changing, the worry that federal detectives are going to track you down for hitting a finch with your car isn't even in the top thousand.

Maybe you just read a bit hasilty, but I specifically said I was not particularly concerned with being prosecuted for such a "crime." But I did indicate that I do have a problem in general with over broad criminal laws and unfettered prosecutorial discretion. In addition, I expressed no concern with changing the law because I also indicated that I don't believe the MBTA actually criminalizes all incidental bird take in the first place (in accordance with the 2017+ interpretation).

I really only tried to make three main points:
  • If the pre-2017 interpretation of the MBTA was correct, I would have a problem with it (for the reasons mentioned).

  • I don't think the pre-2017 interpretation of the MBTA is correct, and IMO the current 2017+ interpretation is probably more accurate.

  • I have no issue with holding industry responsible for the incidental effects of their activities, including incidental bird kills, but I don't think the MBTA gets you there.
Agree or disagree, I'm not sure any of it can fairly be characterized as specious.
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