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September 7, 2018

ATTORNEY GENERAL MADIGAN SUES DEPARTMENT OF INTERIOR FOR ABANDONING LONGSTANDING PROTECTIONS FOR MIGRATORY BIRDS

Madigan, Seven AGs Seek to Reverse Decision to Gut Migratory Bird Treaty Act That Protects Over 200 Migratory Bird Species Critical to Illinois' Ecology, Science & Economy

Chicago — Attorney General Lisa Madigan and seven other attorneys general today announced a lawsuit against the U.S. Department of Interior (DOI) for drastically narrowing the scope of protections provided to migratory birds under the 100-year-old federal Migratory Bird Treaty Act (MBTA).

Illinois' more than 200 migratory bird species have substantial ecological, scientific and economic value to the state. For the past 100 years, the MBTA has been a cornerstone of efforts to conserve waterfowl, egrets, songbirds, birds of prey, and other important bird species. Yet a legal opinion issued by the DOI late last year now prohibits the department and the U.S. Fish and Wildlife Service (FWS) from exercising their long-standing authority to enforce the MBTA against industrial or other human activities such as spilling oil and failing to cover chemical waste lagoons that kill migratory birds, but are not specifically intended to do so.

"The Department of Interior's action rolls back a critical protection for our natural resources and endangers millions of birds that migrate through Illinois," Madigan said. "We will work to ensure that these migratory birds continue to be protected by law."

In the lawsuit filed in the U.S. District Court for the Southern District of New York, Madigan and the coalition argue that the DOI opinion contradicts the plain meaning, structure and intent of the MBTA, and its broad prohibition on the "taking" (injury or death) of migratory birds "by any means or in any manner." The suit calls the opinion "arbitrary and capricious and contrary to the law," and asks the court vacate it.

Congress enacted the MBTA in 1918 to implement a treaty between the U.S. and Great Britain (acting on behalf of Canada). The scope of the MBTA is essential to safeguarding migratory birds, as it reflects the fact that once birds migrate outside a state, that state does not have the ability to protect them through its laws and regulations.

The MBTA makes it unlawful to "take" or "kill" any migratory bird "at any time, by any means or in any manner," unless permitted by regulation. The DOI and FWS implement and enforce the MBTA. For decades, these agencies have recognized that the Act's prohibitions are triggered when it is reasonably foreseeable that an activity will kill birds even if their death was not intended.

In January 2017, the DOI reaffirmed this prohibition in a legal opinion stating that "the MBTA's broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing." However, less than a year later, the DOI reversed its longstanding interpretation in a new opinion that reinterprets the MBTA as prohibiting only activities that "have as their purpose the taking or killing of migratory birds," such as poaching.

By prohibiting "incidental takes" takings that result from, but are not the purpose of, carrying out an otherwise lawful activity DOI and FWS have protected millions of migratory birds incidentally exposed to injury or death by industrial and other human activities. The threat of MBTA enforcement has incentivized reasonable, low-cost measures to avoid, minimize, and mitigate harm to these birds. The U.S. Department of Justice, acting on behalf of the two agencies, has previously deterred potential MBTA violations by prosecuting the incidental killing of large numbers of migratory birds, including through oil spills and the failure to cover chemical waste lagoons known to attract birds.

Migratory birds benefit states by, among other things, controlling insect and rodent populations, pollinating plants, spreading seeds, and providing recreational opportunities and revenue. Fees charged for the legal hunting of migratory waterfowl generate millions of dollars for conservation programs and also generate economic activity.

Joining Madigan in filing the lawsuit were the attorneys general of California, Maryland, Massachusetts, New Jersey, New Mexico, New York and Oregon.

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