Eleven AGs Filed Comments Criticizing Proposal to Weaken Protections for Migratory Birds

MARCH 19, 2020

New York Attorney General Letitia James led a coalition of 11 attorneys general in submitting comments urging the U.S. Fish and Wildlife Service to withdraw a proposed rule that would codify improper agency guidance that essentially ended enforcement of the Migratory Bird Treaty Act’s (MBTA) prohibition against the incidental take of migratory birds. The comments emphasized that for nearly 40 years the Service has interpreted the MBTA to apply to activities that result in bird deaths “whether those deaths were the purpose of the activity or incidental to otherwise lawful activity”—a position “compelled by the MBTA’s text” and supported by its legislative history and extensive case law. The attorneys general noted that birdwatching is a popular recreational activity among millions of their states’ residents and generates billions of dollars in economic activity every year—all of which would be in jeopardy under the proposed rule’s misinterpretation of the MBTA. The AGs also noted that birds protected under the MBTA provide valuable ecological services, including “insect and rodent control, pollination, and seed dispersal.”