Bird deaths showcase dilemma over migratory treaty law

New Mexico resident Wayne Martin killed robins, hummingbirds and hawks, and for those intentional acts he's paying a price.

But although Martin last month was sentenced to 37 days in prison for violating the Migratory Bird Treaty Act, companies whose actions inadvertently result in the deaths of protected birds are shielded from prosecution under the Trump administration's interpretation of the law.

It's a big difference, which some are trying to erase in federal courthouses and on Capitol Hill.

"Audubon strongly disagrees with the legal interpretation that incidental take is not prohibited under the law and is meant to only apply to hunting and poaching," Stanley Senner, the National Audubon Society's vice president for bird conservation, told lawmakers June 13.

Senner's testimony before the House Natural Resources Subcommittee on Water, Oceans and Wildlife offered support for a draft bill authored by Rep. Alan Lowenthal (D-Calif.).

The 15-page discussion draft effectively reverses the Trump administration's declaration that MBTA's prohibition on the take of protected birds covers intentional but not unintentional acts.

Power lines, open oil wastewater pits and wind turbines are the kinds of inadvertently dangerous and potentially lethal operations now left out of MBTA enforcement, under the Trump administration's interpretation that's also the subject of several lawsuits.

Lowenthal's draft bill came under occasionally heated discussion one day after a federal judge sentenced the 47-year-old Martin for acts that illustrate what's meant by intentional take, the one thing that all agree deserves prosecution.

Martin pleaded guilty to one count of violating the MBTA on Jan. 5, 2017. He then failed to appear in court for his original sentencing hearing and stayed away for 21 months before agents arrested him, prosecutors said.
The offense itself dates back some seven years.

"Fish and Wildlife Service agents learned that [Martin] was hunting and killing migratory birds and offering the bird parts and feathers for sale," prosecutors recounted in a sentencing memo. "An agent posed as an out-of-state drum maker on a buying trip, and arranged to meet [him] at his home."

On Feb. 29, 2012, prosecutors said, the undercover agent met Martin at his home and negotiated the purchase of feathers and parts of multiple birds for $600. Later, the agent revealed his identity, and Martin reportedly admitted that he knew he was not supposed to kill the birds.

Martin described the birds as "three hawks, two bluebirds, a woodpecker, two blue jays, two hummingbirds, one yellow bird, four sparrow hawks, one other hawk-sparrow, one frozen hawk, and three song birds," according to prosecutors.

Martin said he's sorry about killing the birds and skipping his initial sentencing hearing.

"Mr. Martin has limited funds and is attempting to reestablish himself in his community in a stable living environment," his public defender wrote in a sentencing memo.

A decline in MBTA cases

In fiscal 2016, during the Obama administration, the Fish and Wildlife Service Office of Law Enforcement reported working 520 MBTA cases.

A decade earlier, in fiscal 2006 during the George W. Bush administration, the agency reported working 1,933 MBTA cases. These included a number that illustrate the kind of unintentional take that's now under debate.