[Editor’s note: An earlier version of this article erroneously stated Duncan’s amendment would include eagles, which are protected under a different law]
South Carolina Republican Congressman Jeff Duncan is getting heavy criticism from at least one conservation group over his support of a budget amendment the group claims would endanger migrating birds.
But Duncan said he’s only trying to protect homeowners and businesses that could be charged with a felony for accidental bird deaths that occur on their property.
At issue is language in the 1918 Migratory Bird Treaty Act that gives the U.S. Justice Department the authority to prosecute individuals for the deaths of more than 1,000 migratory bird species protected against under federal law. Duncan said the law does not differentiate between bird deaths caused by hunting or by crashing into a large window. A first offense can result in a misdemeanor and fine, but a second offense is treated as a felony.
“The (law was) written to target the intentional killing of migratory birds and birds of prey,” he said on the House floor earlier this month. “I don’t think anyone believes that accidental deaths as a result of solar panels or wind energy production warrants felony prosecution.” The Justice Department has prosecuted a small number of cases under the law, including a Wyoming energy company that received a $2.5 million fine and five years probation after more than 370 birds collided with wind turbines at two of its facilities.
The congressman had initially tried to add the one-year amendment to prevent prosecution for “accidental” bird deaths, but House leaders ruled it out of order as budget amendments cannot change federal law. So Duncan tried again successfully with a separate amendment that only blocked funding for the prosecution of those cases. But there is no language in that amendment about the violation needing to be accidental. It was included in a voice vote.
The National Audubon Society claimed that would leave the door open for intentional killings to go unpunished, as well. “If Duncan’s amendment had been law during the BP disaster, those responsible for the largest marine oil spill in history would have faced no prosecution for causing the deaths of an estimated one million birds,” the group’s vice president of government relations Mike Daulton said in a statement. “Allowing this amendment to become law is tantamount to an avian slaughter free-for-all.”
Duncan was not available to comment Friday, but a staffer said the congressman is confident the Senate will be able to include language clarifying the amendment only impacts unintentional killings. The Senate did not include the amendment when it sent its version up of the bill to the floor, but senators still have the option of adding it later this month.
Some House Democrats questioned why the change is even needed after nearly a century of protection. “You’re dismantling law enforcement’s ability to enforce the law where people have violated it,” Congressman Sam Farr, D-California, said. “Violated it.”
The US Fish and Wildlife Service indicated last month that it plans to update the regulations on its own to clarify when migratory bird “takes” (deaths) could be considered incidental. The agency said it is also considering measures that would require those property owners minimize incidental takes. The public can comment on the proposed regulations before July 27.
Duncan insisted he was only trying to buy time until the Fish and Wildlife Service could finish its work. “Even the Obama Administration recognizes that there is something wrong with how we prosecute these cases of incidental and accidental deaths.”