MANHATTAN (CN) — Sprinkling her ruling with the wisdom of literary lawyer Atticus Finch, an Alabama-born federal judge stopped President Trump’s Interior Department from declaring open season on practices that endanger migratory birds.
“It is not only a sin to kill a mockingbird, it is also a crime,” U.S. District Judge Valerie Caproni, quoting the novel “To Kill a Mockingbird” and federal law, wrote in the introduction of her 31-page ruling.
“That has been the letter of the law for the past century,” it continues. “But if the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”
Born in Lee County, Alabama, Judge Caproni grew up a 2.5-hour drive away from the hometown of Harper Lee, the literary pride of the Cotton State whose novel stands as an icon of fictional civil rights lawyering.
Since Barack Obama appointed her to New York’s federal bench in 2013, Caproni’s droll wit and remnants of her Southern dialect occasionally have made their mark on her cases.
The latest of this pantheon involves the Trump administration’s bid three years ago to reinterpret the Migratory Bird Treaty Act of 1918, aimed at “saving from indiscriminate slaughter” migratory birds in the United States, United Kingdom and Canada.
Ratified by Congress more than a century ago, the treaty banning hunting, taking or killing migratory birds — or even attempting to do so — received a stealthy reinterpretation by the Interior Department’s Solicitor Daniel Jorjani in late 2017.
A former Koch Industries employee, Jorjani wrote a decision permitting “incidental” killings, an allowance that quickly disarmed punishment for bird deaths and devastated certain nesting areas.
The Natural Resources Defense Council, which led a coalition of environmental groups and states opposing the policy, applauded Caproni’s ruling.
“This decision confirms that Interior’s utter failure to uphold the conservation mandate of the U.S. Fish and Wildlife Service simply cannot stand up in a court of law,” the NRDC’s senior attorney Katie Umekubo wrote in a statement. “The MBTA protects millions of birds and the Trump administration’s reckless efforts to rollback bird protections to benefit polluters don’t fool anyone.”
Judge Caproni blocked the Trump administration’s revision of the treaty as a violation of the Administrative Procedure Act.
“Even if Congress did not foresee that modern industrial activity would one day threaten protected migratory bird populations, that does not justify disregarding the statute’s unambiguous language,” she wrote.
Since the change in late 2017, environmental groups have reported that the treaty’s enforcement has stalled across the nation.
That has meant a lack of liability to the people and entities that allowed snowy owls to be electrocuted by uninsulated power lines in Delaware, Maryland, Tennessee and North Dakota; the avian life drowned by oil spills in Massachusetts, Idaho and Washington; and dove chicks thrown into a tree shredder by landscapers in San Diego, the NRDC says.
The Interior Department has let companies skate on this conduct if shown to be incidental, but Caproni asked the government whether one can target and kill a bird without that intent.
“Surely yes,” she wrote, answering her own question, “a child throwing rocks at birds in a pond to see them fly does just that when one of those rocks strikes and kills a bird.”
That was the lesson Atticus Finch tried to impart upon his children in a passage of the novel that Judge Caproni quoted early in her ruling.
“Mockingbirds don’t do one thing but make music for us to enjoy,” the novel’s passage, quoted in a footnote of the ruling, observes. “They don’t eat up people’s gardens, don’t nest in corncribs, they don’t do one thing but sing their hearts out for us. That’s why it’s a sin to kill a mockingbird.”
The Interior Department insisted that U.S. Fish and Wildlife Service, its subagency, remains committed to preserving the birds.
“Today’s opinion undermines a commonsense interpretation of the law and runs contrary to recent efforts, shared across the political spectrum, to de-criminalize unintentional conduct,” Interior’s press secretary Ben Goldey wrote in a statement.
In his regular broadsides against renewable energy, Trump routinely claims that wind turbines cause cancer and are a "bird graveyard." There is no evidence linking windmills to cancer, and coal power — which Trump champions — kills millions more birds than the some 140,000 and 500,000 that collide with wind turbines annually.
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