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International Environmental Law Project (IELP)

Petition to the Council for Environmental Cooperation to enforce the Migratory Bird Treaty Act

February 17, 2010

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    Ruddy Turnstone (Photo: Lt. Mike Levine, NOAA)

After a three-year process, the Secretariat released a factual record on April 24, 2003 that concluded that the failure of the United States to enforce the Migratory Bird Treaty Act in two cases in which loggers killed migratory birds or destroyed their eggs and nests was “consistent with the federal government’s record to date of never having enforced the MBTA in regard to logging operations.”

On November 18, 1999, nine environmental groups from the United States, Canada and Mexico submitted a petition alleging that the U.S. Government deliberately allows logging companies to flout U.S. laws that prohibit the killing of migratory birds - in direct violation of the Migratory Bird Treaty Act (MBTA) and international treaties that the United States has signed with Canada and Mexico.

The International Environmental Law Project (IELP) initiated this petition and then submitted it under the name of the Center for International Environmental Law and eight other North American groups. IELP initiated the petition because courts had ruled that the Forest Service could not be compelled to implement the MBTA in its timber contracts with logging companies. During the course of IELP’s investigation, students uncovered a Fish and Wildlife Service memorandum in which the Fish and Wildlife Service admitts that it has an unwritten policy of not enforcing the MBTA against loggers. The memo states: “The Service has a longstanding, unwritten policy relative to the MBTA that no enforcement or investigative action should be taken in incidents involving logging operations that result in the taking of non-endangered, non-threatened, migratory birds and/or nests.”

This is a clear failure to enforce the Migratory Bird Treaty Act, which recognizes the economic and ecological value of all migratory birds - not just endangered species - and prohibits killing them except according to legal, scientifically-based permits. Nonetheless, U.S. law offers few opportunities for compelling the Fish and Wildlife Service to enforce the law. The Supreme Court has ruled that citizens in general do not have the right to challenge agency enforcement decisions. Heckler v. Chaney, 470 U.S. 821, 832 (1985). A federal court has specifically ruled that citizens do not have the right to challenge the Fish and Wildlife Service’s decision to enforce the MBTA. Alaska Fish and Wildlife Federation v. Dunkle, 829 F.2d 933, 939 (9th Circuit 1987).

Because no other domestic legal remedies seemed possible, IELP pursued its complaint with the Commission for Environmental Cooperation (CEC). The CEC was set up by Canada, Mexico and the United States, the three NAFTA countries, specifically to investigate failures of the government to enforce environmental law under the North American Agreement on Environmental Cooperation (NAAEC). Students participated in all aspects of preparing the petition. They researched the impacts of logging on birds, wrote legal memoranda concerning the MBTA, wrote requests for information pursuant to the U.S. Freedom of Information Act, and drafted the initial complaint.

On December 23, 1999, the Secretariat of the CEC made its determination that the petition met the requirements for submission and that it merited a response from the United States government. In its determination letter seeking a response from the United States, the CEC specifically stated that the petition was a “particularly strong” candidate for review, because it asserts a “widespread pattern of ineffectual enforcement” that “is longstanding in nature and that it is nationwide in scope.”

The U.S. Response of March 6, 2000 so mischaracterized the issues that IELP, on behalf of CIEL and the other petitioners, prepared a Reply and Clarification of the issues on April 4, 2000. Rather than address its failure to enforce the MBTA against loggers, the United States has tried to bring in the entire range of federal policies and programs that touch on migratory birds. Thus, it claims it protects some migratory birds under the Endangered Species Act or through other programs. However, the Endangered Species Act applies to perhaps 16 forest dependent birds while the MBTA protects hundreds of forest dependent birds. In sum, the United States says nothing to controvert the clear evidence provided in the petition that the United States is failing to enforce the MBTA against loggers.

In addition, the United States argued that its failure to enforce the law is a reasonable exercise of enforcement discretion and allocation of resources. This argument threatens to empty the Article 14 process of meaning altogether, because the United States has never prosecuted a logger or logging company in the history of the MBTA, which was enacted in 1918. This petition, however, does not involve specific decisions to refrain from prosecuting identifiable violations. Rather, it involves a deliberate governmental decision not to enforce a law against a large class of known offenders, despite the fact that the existing statute and regulations authorize no such exemption, and without building a record that justifies such an exemption. It is precisely such unauthorized and unjustified enforcement failures that the NAAEC citizen’s submission process is designed to address.

On January 15, 2001, the Secretariat recommended further investigation into the allegations the U.S. allows logging operations to kill migratory birds without a valid permit issued by the U.S. Fish & Wildlife Service as required by U.S. law. The Secretariat, which carefully reviews all petitions on the merits, has recommended the preparation of a factual report in only six of 28 petitions.

However, the Council, comprising the heads of the environment ministries from the three NAFTA countries, significantly limited the substantive scope of the petition. Although petitioners clearly wanted the Secretariat to investigate the policy of the United States not to enforce the MBTA against loggers, the Council decided, at the urging of the United States, to allow the Secretariat to investigate just two specific cases which petitioners included in their submission merely for illustrative purposes.

In addition to the factual record’s conclusion that the failure of the United States to enforce the MBTA in these two cases was “consistent with the federal government’s record to date of never having enforced the MBTA in regard to logging operations,” the United States also admitted that logging activities kill birds and destroys eggs in violation of the MBTA and that it has never sought to prosecute violations of the MBTA against loggers.

Moreover, while the United States illegally narrowed the scope of the investigation, this narrow focus merely exposed the weakness of federal enforcement efforts. The two examples showed how the state of California could identify and prove violations of the MBTA, something that the federal government claims is too difficult.

In addition, the two examples demonstrated that a regulatory regime to regulate logging and conserve migratory birds is possible. “The irony of the U.S. decision to avoid scrutiny of its nationwide policy of non-enforcement is that it permitted the commission to uncover an entire regulatory regime that harmonizes conservation of migratory birds with commercial logging interests,” said Chris Wold, Director of IELP. “While the United States tried to portray our petition as the ‘Spotted Owl on Steroids’ – an effort to ban all logging – our goal has always been to identify strategies to simultaneously promote conservation and permit logging. We believe that the commission’s findings provide a means to begin serious discussions with the United States to accomplish that goal.”

The goal of IELP and the petitioners has always been to compel the Fish and Wildlife Service to eliminate the illegal exemption for the logging industry and to initiate a discussion of how to manage forests for bird conservation and commercial logging. The petition noted from the outset that the MBTA allows the Fish and Wildlife Service to establish regulations that take into account a bird’s distribution, abundance, economic value, breeding habits and migratory behavior, provided that such regulations are compatible with the migratory bird agreements that the United States has with Mexico, Canada, Japan, and Russia. Thus, the MBTA provides a means to regulate logging, as opposed to banning it, in an effort to conserve migratory birds.

To that end, the petitioners included strategies to accomplish both goals, including incidental take permits for timber harvesting and/or seasonal restrictions on timber harvesting. Petitioners specifically referred the Fish and Wildlife Service to the Partners in Flight program in which the Service participates. That program prepares regional bird conservation plans that take into account the habitat and habitat needs of species in the area. The plans identify “priority species” — those whose biological status is sufficiently vulnerable to warrant additional monitoring or conservation action. They also identify species and habitat types that are abundant or otherwise not vulnerable. IELP and petitioners believe that the Fish and Wildlife Service would be able to issue permits for logging consistent with these plans and will continue to work towards this goal.

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