Involuntary birdslaughter?

Accidentally killing a bird could carry much steeper penalties under the new presidential administration. The U.S. Fish and Wildlife Service announced last week that it intends to return to Obama-era environmental regulatory standards after the Trump administration partially defanged the Migratory Bird Treaty Act.

In its final days, the Trump administration made it harder to prosecute accidental violations of the law designed to protect rare migratory birds. The Biden administration’s reversal follows a decadeslong effort to define the scope of the protections.

Congress passed the Migratory Bird Treaty Act in 1918 making it illegal to harm a list of birds that now includes more than 1,000 species from the acorn woodpecker to the zenaida dove. According to the law, an individual or a company that “at any time, by any means or in any manner” pursued, hunted, took, captured, or killed any of the protected species could face sanction. Each bird death could result in a prison sentence of up to six months and a $15,000 fine.

But where does that leave the operator of a windmill whose machine strikes one of the listed birds? Prior to the Trump administration changes, the Fish and Wildlife Service could decide whether to prosecute an accidental bird kill. From 2013 to 2017, the Fish and Wildlife Service conducted 152 investigations into violations of the act, according to agency spokesman Gavin Shire, but he didn’t say how many yielded prosecutions. Most believe prosecutions are rare.

After the 2010 Deepwater Horizon oil spill in the Gulf of Mexico that killed approximately 102,000 birds, BP agreed to pay a $100 million for violating the act. Exxon paid a total of $125 million after the Fish and Wildlife Service determined the Valdez oil spill of 1989 killed 250,000 birds.

The Trump administration in 2017 issued a memo, finalized in January 2021, changing the Department of Interior’s attitude toward the Migratory Bird Treaty Act, signaling an end to prosecutions for such “incidental takings.” Under the Trump administration, Exxon and BP might have avoided sanction because the oil giants’ actions weren’t intended to kill the birds.

Under the Obama and now Biden administration, purveyors of oil spills could face consequences. But former major league pitcher Randy Johnson might also have run afoul of the stricter rules. During a spring training game in 2001, a bird, likely a mourning dove, flew across the path of Johnson’s fastball and exploded in mid-air. The hall-of-famer didn’t intend to kill the bird, but the animal’s place on the protected list could have made the incident a legal problem if the Fish and Wildlife Service chose to pursue the case.

Federal courts have divided over how to deal with accidental killings. Three federal appeals courts have issued opinions siding with the Trump administration’s more forgiving interpretation of the law, while two have taken a more exacting view. Often, the Supreme Court needs to resolve cases where appeals courts disagree on an interpretation of a law.