If you ever visit Butte, Montana, take a spin past the Berkeley Pit. You might have heard of it, often in reference to waterfowl. The inactive open-pit copper mine is a mile wide, 900 feet deep, and holds a lake with tens of billions of gallons of contaminated groundwater.
The pH level of the water is similar to that of stomach acid due to the extreme levels of copper, sulfuric acid, arsenic, and other heavy metals and toxins released from the surrounding rock. Mining activity stopped in 1982 and the pit has been filling with groundwater ever since.
As you stand on one of the viewing platforms above America’s largest superfund site, conversations are frequently interrupted by a propane cannon firing air blasts across the water. Those intermittent bangs have a lot riding on them: In 1995, 342 migrating snow geese were poisoned and burned to death after touching down on the surface for a rest. This happened to another migrating flock of snow geese in 2016, almost 4,000 of which were found dead and covered in lesions after drinking the water.
While this might sound pretty illegal, not a single penalty fee was collected.
Certain commercial industrial activities kill lots of birds. Every year, between 500,000 and 1 million birds die in oil pits. Wind turbines kill another estimated 680,000 annually. Electrocution is in a league of its own: One study suggests that power lines claim a whopping 11.6 million birds.
Whether you’re a waterfowler, upland bird hunter, or someone who enjoys seeing a few raptors careening overhead as first shooting light spills over a distant herd of muleys, you might feel a little flutter of frustration at these statistics. You might even get rattled enough to ask a question that has befuddled federal courts, the EPA, and the Fish and Wildlife Service for decades: Who’s at fault?
On Aug. 24, eight new senators jumped on board with a bipartisan bill reintroduced on July 29 by Rep. Alan Lowenthal (D-CA) and Rep. Brian Fitzpatrick (R-PA) that would place liability for incidental bird deaths from legal commercial activity on those conducting the activity. The bill would amend the Migratory Bird Treaty Act, one of the cornerstones of conservation policy.
“The MBTA was ultimately the legislation that saved waterfowl hunting as we know it,” MeatEater’s waterfowl specialist Sean Weaver said. “Market hunting had all but decimated North America’s waterfowl populations, especially the canvasback and wood duck, and sport hunters and outdoor writers saw the writing on the wall for our waterfowl future if something didn’t change. The MBTA was the manifestation of a national recognition that we couldn’t sustain market hunting practices. The teeth it had in 1918 are still as important today.”
A highly controversial memo was filed with the Department of the Interior on December 22, 2017, that declared “the Migratory Bird Treaty Act’s prohibition on the pursuing, hunting, taking, capturing, killing, or attempting to do the same applies only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.”
Simply put, the MBTA protects migratory birds from illegal, intentional harm. But according to the memo, when it came to legal penalties for contaminated groundwater, oil pits, wind turbines, or power lines that unintentionally claimed millions of avian lives, the industries were let off the hook.
These deaths are considered examples of “incidental take.” In wildlife law, this phrase refers to any harm an animal suffers as a by-product of a lawful activity not originally intended to harm that animal. Maybe you’ve heard the term used in reference to the Endangered Species Act, which makes any incidental taking of an at-risk species ripe for a hefty fine if such lawful activities aren’t covered by special permits from the U.S. Fish and Wildlife Service.
This amendment would bring clarity to a notoriously murky area of wildlife law. Prior to the memo from 2017, the Migratory Bird Treaty Act had been legally interpreted to both allow and prohibit incidental take of migratory birds on multiple occasions. Some commercial operators were held fiscally responsible for dead birds, and others weren’t.
In 2017, the USFWS decided to not fine Montana Resources and the Atlantic Richmond Company (ARCO), owners of the Berkeley Pit, for the thousands of snow geese their pit poisoned. Each individual death would have cost MR and ARCO $5,000. But, 39 years earlier, a different court in a different circuit held pesticide manufacturer FMC Corporation liable for a much smaller mortality event: 18 larks, herons, and geese that died after landing in a contaminated pond.
Whether the MBTA should prohibit incidental take or not, a piece of legislation can’t guarantee that birds won’t fly themselves in fatal situations. The language of this new amendment recognizes that. That’s why it allows for certain industries to get incidental take permits from the USFWS if an environmental assessment proves there is a risk present for migratory birds.
In other words, if companies from the oil and gas, communications, or wind and solar power industries recognize and own up to the potential for birds to meet their demise due to their economic activity, they can pay mitigation money for their destruction of the public’s wildlife if they can prove they made a significant effort to limit the damage. Much of those funds go into research and improvement of migratory bird habitat.
The bipartisan nature of the bill is understandable: It makes the MBTA appeal to both the conservationist and the industrial tycoon.
“The MBTA has been a critical tool for bird conservation for over 100 years,” Rep. Lowenthal said in a press release. “Democratic and Republican presidential administration since the 1970s have interpreted and applied the law in a similar way, which has saved countless numbers of birds. Our bill would…once and for all reaffirm and formalize all of the MBTA protections. We must prevent future reinterpretations that might let commercial interests off the hook when it comes to killing birds.”
Rep. Fitzpatrick echoed his partner across the aisle.
“We must take the necessary steps to protect and conserve migratory bird populations,” he said. “We must ensure that longstanding protections for birds are fully maintained while providing greater regulatory certainty. I am proud to join Rep. Lowenthal in introducing the bipartisan Migratory Bird Protection Act, which takes important steps to protect millions of migratory birds.”
