Deep Dive Episode 19 – Does the Migratory Bird Treaty Act Prohibit Incidental or Accidental Killing?

Pursuant to a modern interpretation of a 100-year old law, every American who owns a cat, drives a car, or owns a home with windows is a potential criminal.  The Migratory Bird Treaty Act is a strict liability statute that was passed in 1918 to prevent commercial hunting and poaching from driving migratory birds into extinction.  Decades later, government lawyers began using this hunting and poaching law to prosecute people for accidental bird deaths resulting from otherwise lawful activity.  The result was the imposition of a greater duty to protect the lives of birds, prosecutorial discretion to decide which people and industries would be held to account for “incidental takings,” and a collection of formal and informal guidance from enforcement agencies about how to comply to avoid jail time and heavy fines.  On this live podcast, learn how we got here, what the Department of the Interior is doing in this regulatory space, and what effect the DOI’s actions will have.

Gary Lawkowski

Counselor to the Deputy Secretary

Department of the Interior

Energy & Environment

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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