May 1, 2012

Sparks fly as DOJ prosecutor forced to defend migratory bird law enforcement

By Lawrence Hurley, E&E reporter • Posted: Monday, April 30, 2012, via:

Responding to criticism from an industry lawyer, the Justice Department’s top environmental crimes prosecutor yesterday mounted a foreceful defense of the government’s enforcement of a law that criminalizes the killing of migratory birds.

Stacey Mitchell, chief of the environmental crimes section at DOJ, was put on the spot by Kevin Gaynor, an attorney at the Vinson & Elkins firm, who expressed strong disapproval of the way the government has handled such prosecutions. Both were on a panel at an American Law Institute-American Bar Association conference on environmental crimes that took place at the Venable law firm in downtown Washington.

Enforcement of the Migratory Bird Treaty Act has become a delicate issue in recent years, made more controversial by the government’s failure to prosecute any wind energy operators despite the fact that turbines are estimated to kill many thousands of birds a year (Greenwire, Jan. 26). In theory, a prosecution can be prompted by the death – or “take” – of just one bird.

Gaynor’s main complaint is that DOJ has brought cases against oil and gas companies, which he represents, over a relatively small number of bird kills. He cited a prosecution in North Dakota brought against several companies blamed for killing a total of 27 birds. A judge dismissed the charges, and the government, although it initially sought to appeal the ruling, has since decided against doing so.

“Questions have to be asked what we are doing as a society chasing 27 migratory birds,” Gaynor said.

Mitchell gave a spirited rebuttal, stressing that no one “should read anything” into the terminated appeal in the North Dakota case.

As for the statute, she said there “isn’t any question … that it applies to these takings.”

Mitchell also noted that the government only prosecutes after the Fish and Wildlife Service has sought to resolve the issue by encouraging the company to take mitigation measures to prevent further deaths. Often, the solution simply can be to put a net over a pond, Mitchell said.

Ultimately, prosecutions are not based on how many birds are killed but rather the willingness of the company to cooperate, she added.

Gaynor remained unimpressed. He questioned whether, based on a close reading of the law, companies should ever be prosecuted for “incidental takes” of migratory birds.

It was left to one of the other panelists, David Buente of Sidley Austin, to sum up the concerns industry has about the way the migratory bird law is enforced.

“It’s still a total muddle,” he said.

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