Blog author: jcarter
by on Thursday, January 31, 2013

In the 1880s America’s most flighty fad was fowl-bedecked fashion.

bird-hat“Trendy bonnets were piled high with feathers, birds, fruit, flowers, furs, even mice and small reptiles,” writes Jennifer Price, “Birds were by far the most popular accessory: Women sported egret plumes, owl heads, sparrow wings, and whole hummingbirds; a single hat could feature all that, plus four or five warblers.” The result was the killing of millions of birds, including many exotic and rare species. Reporting on the winter hat season in 1897, Harper’s Bazaar declared, “That there should be an owl or ostrich left with a single feather apiece hardly seems possible.”

Americans outraged by this senseless destruction of wildlife launched, as Price says, “the first first truly modern conservation campaign” in the 1890s—decades before John Muir, Teddy Roosevelt, and others made conservation efforts popular. Over the next two decades a flock of legislation began to be passed to protect birds, including the Migratory Bird Treaty Act of 1918 (MBTA).

Appearing 55 years before the Endangered Species Act, the statute made it unlawful to pursue, hunt, take, capture, kill or sell specific migratory birds, including bald eagles, barn owls, and mourning doves. The federal law became an important conservation tool, a means of preventing the wanton slaughter of wildlife for trivial commercial reasons.

But tools can often be used as weapons, and the Obama administration has used the MBTA as a bludgeon against the oil and gas industry. Last year the executive branch argued that the MBTA should be broadly interpreted to impose criminal liability for actions that indirectly result in a protected bird’s death, and used that reasoning to file criminal charges against three energy companies.

The U.S. District Court of North Dakota rejected this sweeping interpretation of the MBTA and dismissed the charges, noting that the words “kill” and “take” in statute should be interpreted narrowly to mean actions taken with the intent to kill or take a bird, not actions that merely happen to kill or take a bird. The ruling will strike many people as fair-minded but the Department of Justice has appealed to the Eighth Circuit Court of Appeals.

Nevertheless, reasonable people can disagree about how to balance the interests of birds and businesses. And even those conservationists who disagree with the Obama administration’s interpretation of the MBTA—folks like me—should respect their willingness to look out for the birds. But the problem is that the administration seems to have a double-standard. While oil and gas companies have been charged with crimes under the statute, not a single wind farm has been charged.

A 2008 study by the Fish and Wildlife Service estimates that wind farms in the U.S. kill nearly a half million birds per year. While that estimate is certainly too high, it shows that wind farms are a major killer of winged creatures. In California alone about 100 golden eagles are caught in the wind turbines every year. But to date, no companies in President Obama’s favorite energy sector has been protected.

The double-standard caught the eye of Sens. David Vitter (R-La.) and Lamar Alexander (R-Tenn.). The Senators recently sent a letter to U.S. Attorney General Eric Holder asking why he is “targeting” oil and gas companies by prosecuting them for the unintentional death of birds.

“These are important matters,” said Sen. Alexander. “The rule of law is one of the fundamental characteristics of this nation and the Department of Justice is enforcing a law against oil and gas companies and not wind energy companies.”

The selective prosecution is certainly disconcerting, since it undermines trust in the rule of law. Equally troubling, though, is the attempt to undermine a statute that aids environmental stewardship.

The law must be able to distinguish between unintentional killing of doves that happen to cross one’s property and the intentional slaughter of bald eagles to adorn one’s fedora. By broadening the meaning of “kill” in a way that subverts it’s original intent, the Obama administration makes it difficult to support the MBTA and makes conservatives cautious about endorsing sensible conservation laws in the future.

God gave man dominion over the “birds of the heavens” (Gen. 1:26), a profound duty of stewardship over creatures that do not fall to the ground without their Creator knowing about it (Matt. 10:29). However, in our fallen world the tasks of “tending the garden” often results in the unintentional destruction of creatures we’re meant to protect. In order to do justice to both man and animals, our laws must be able to distinguish between irresponsible slaughter and imperfect stewardship—a task which requires an executive branch that cares more about protecting wildlife than punishing wildcatters.