HomeEnvironment & Climate NewsBiden Administration Proposes Rescinding Trump-era Migratory Bird Reforms
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Biden Administration Proposes Rescinding Trump-era Migratory Bird Reforms

The U.S. Department of the Interior (DOI) announced it would soon make the accidental killings of migratory birds a criminally punishable offence again.

Prosecute or Not?

In December 2020, the U.S. Fish and Wildlife Service (FWS) published changes to regulations governing the killing of migratory birds, which resulted in DOI decriminalizing the accidental or unintentional killing of migratory birds.

A 1970s era interpretation of what counts as illegally “taking” a protected bird under the 1918 Migratory Bird Treaty Act (MBTA), allowed for the criminal prosecution of people or companies that killed protected migratory birds even when the deaths were unintentional.

Under President Donald Trump, DOI changed the rule so companies and individuals who, when undertaking otherwise legal actions, inadvertently killed a bird protected under the MBTA, would not be liable for criminal punishment. Only intentional killings of migratory birds could be criminally prosecuted.

The Biden administration’s proposed rule change will make the accidental or unintentional killing of migratory birds criminal acts once again, making prosecution possible.

Let Common Sense Rule

Americans should be concerned about protecting migratory birds, but that doesn’t mean we have to forego common sense in doing so, says Daren Bakst, a senior research fellow in regulatory policy studies with The Institute for Economic Freedom at The Heritage Foundation.

“Unfortunately, past implementation of the MBTA allowed for property owners who accidentally or unintentionally harmed migratory birds while engaging in ordinary day-to-day activities, to potentially face criminal charges,” Bakst said. “The Trump administration finalized a rule preventing this type of overcriminalization and threat to due process.

“But now it looks like common sense could be leaving the building, with the Biden administration proposing to go back to the inexcusable interpretation that existed before,” Bakst said.

A 2017 legal opinion from DOI’s Solicitors Office explains what is at stake, says Bakst.

“The DOI’s Solicitor said, ‘Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed,’” Bakst said. “We need to get rid of that sword and allow Americans to engage in lawful and productive actions without having to fear the pain of the blade.”

Kenneth Artz (kennethcharlesartz@gmx.com) writes from Dallas, Texas.

Kenneth Artz
Kenneth Artzhttps://www.heartland.org/about-us/who-we-are/kenneth-artz
Artz has more than 20 years’ experience in nonprofit organizations, publishing, newspaper reporting, and public policy advocacy.


  1. Basically, this is intended to target upstream oil & gas production and electric utilities (transmission). I have no problem with EQUAL PROTECTION under the law. That said, then I respectfully suggest DOI apply this SAME STANDARD to the wind & solar installations that have a LOT higher probability of bird kills under both the MBTA and equally important Endangered Species Act. Whether it is taxpayer “subsidies” or environmental regulation, a LEVEL playing field is essential in our energy sector. Under the current Administration, something tells me when it comes to anything fossil fuels, the THUMB will remain on the scale…


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