Van Hollen Demands Answers from Zinke on Interior’s Oil Spill Regulations
Today, U.S. Senator Chris Van Hollen (D-Md.) sent a letter to U.S. Department of Interior (DOI) Secretary Ryan Zinke pushing for answers surrounding the Migratory Bird Treaty Act (MBTA).
The Senator has repeatedly raised concerns about DOI’s new guidance that oil companies responsible for oil spills would no longer have to pay penalties for massive loss of bird life under the MBTA. But Secretary Zinke, when questioned about this issue by Senator Van Hollen at a recent Senate Appropriations Subcommittee hearing, said that interpretation was not correct. This is a critical issue that must be resolved, but the DOI has refused to provide clarity or further guidance.
The full text of the letter is available here and below.
Dear Secretary Zinke:
I am writing as follow-up to my questions to you during the hearing before the Interior, Environment, and Related Agencies Appropriations Subcommittee on May 10, 2018, and the Question for the Record I submitted after the hearing related to the Migratory Bird Treaty Act (MBTA). To date, the Department of the Interior (Department) has not responded to the Appropriation Committee’s Questions for the Record from the May 10, 2018 hearing. I ask that you both respond to those Questions for the Record, and answer my specific questions below on the MBTA.
As you know, the MBTA, a criminal statute enacted in 1918, makes it illegal for any person to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, … ship, … transport, … carry, … receive … at any time, or in any manner, any migratory bird, … or any part, nest, or egg of any such bird.” (emphasis added) 16 U.S.C. § 703. For decades, the U.S. Fish and Wildlife Service took the position that any human activity which resulted in the death of protected migratory birds could be prosecuted as a misdemeanor under the MBTA, even if the death of the bird was unintended. Many courts upheld that interpretation of the law.
My questions are solely related to MBTA penalties for the non-intentional killing or injury of migratory birds by companies responsible for oil spills. My questions are not related to other penalties that could be collected under the Clean Water Act (CWA), or damages that could be collected in the aftermath of an oil spill through the Natural Resources Damage Assessment (NRDAR) program, such as damages under the Oil Pollution Act (OPA) or the CWA.
First, below I have an excerpt from the Appropriations Committee transcript where we discussed the MBTA and future claims seeking fines or penalties for violations of MBTA after an oil spill.
Van Hollen: Let me ask you another question related to damage from oil spills. I understand that changes you’ve made with a reinterpretation of the Migratory Bird [Treaty] Act would mean oil companies responsible for oil spills would no longer have to pay damages for massive loss of bird life under the Migratory Bird Treaty [Act]. That was the finding, is that correct?
Zinke: That is not correct
In this question, you assert that it is not correct that under the new legal opinion, or M-Opinion (Solicitor’s Opinion M-37050 of December 22, 2017) of the MBTA, oil companies responsible for oil spills would no longer have to pay penalties for the massive loss of bird life under the MBTA.
However, on April 11, 2018, then U.S. Fish and Wildlife Service Principal Deputy Director Greg Sheehan issued a Guidance Memo to Service Directorate on the M-Opinion affecting the MBTA. The memo includes a 5 page attachment entitled “Frequently Asked Questions Regarding Implementation of the M-Opinion”. I have attached that document for your reference.
Question 5 of that Frequently Asked Questions Document poses the question, “How does the M-Opinion affect the Natural Resources Damage Assessment program (i.e., specifically related to oil spills)?”
And the answer specifically states: “In practice, however, the M-Opinion will have an effect on future claims seeking fines or penalties for violations of the MBTA from companies responsible for oil spills and hazardous releases. In addition to pursuing damage claims under the NRDAR program, the Department has pursued MBTA claims against companies responsible for oil spills that incidentally killed or injured migratory birds. That avenue is no longer available.”
The Guidance Memo issued to the U.S. Fish and Wildlife Service Directorate makes it clear that the Department will no longer have the avenue to pursue claims under the MBTA against companies responsible for oil spills that incidentally killed or injured migratory birds. Please clarify whether, going forward, the Department will be able to secure fines or penalties for violations of the Migratory Bird Treaty Act from companies responsible for an oil spill that incidentally and non-intentionally kills birds similar to the British Petroleum (BP) Deepwater Horizon disaster of 2010, which killed an estimated 1,000,000 migratory birds.
As you are aware, in the aftermath of the BP Deepwater Horizon Oil Spill, BP pled guilty to one misdemeanor count of violating the MBTA. As part of the settlement, BP agreed to pay $100 million to the North American Wetlands Conservation Fund (NAWCF) to support projects focused on wetlands restoration and conservation in the United States, Canada and Mexico. The MBTA penalties were separate from the 14 other criminal counts against BP. My strong concern is that going forward, the option for the Department to collect penalties under the MBTA in the aftermath of an oil spill will no longer be available because of the changes made by the M-Opinion. Is this M-opinion consistent with the law, which states on its face that it applies to “takes” in any manner? How is the M-Opinion justified?
Second, my understanding is that on May 24, 2018, legal actions were filed in the U.S. District Court for the Southern District of New York, against the Department, the U.S. Fish and Wildlife Service, and the Department’s lawyer who authored the December 2017 M-Opinion. (National Audubon Soc’y et al. v. U.S. Dep’t of the Interior et al., Case 1:18-cv-04601 (filed May 24, 2018) (S.D.N.Y.); Natural Resources Def. Council et al. v. U.S. Dep’t of the Interior et al., Case No. 1:18-cv-04596 (filed May 24, 2018) (S.D.N.Y.). Plaintiffs include conservation organizations and 8 states, including the State of Maryland. If in fact your statement to me on May 10, 2018 was factual that “it is not correct” that oil companies responsible for oil spills would no longer have to pay penalties for massive loss of bird life under the MBTA, please provide an explanation of what basis for which the Department is opposing these legal challenges.
I look forward to a prompt response to these matters.
Sincerely,
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