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States’ Challenge to Interior’s New Bird Policy Advances

Aug. 1, 2019, 6:06 PM

The Interior Department will have to keep defending a suit seeking to overturn its conclusion that a century-old federal law doesn’t criminalize accidental harm to migratory birds.

The Migratory Bird Treaty Act of 1916 has only ever sought to criminalize purposeful “taking” of migratory birds, their nests, or their eggs, the DOI’s principal deputy solicitor Daniel Jorjani said in a December 2017 memorandum opinion. That was a sharp reversal of a prior federal policy that prosecuted incidental takes as a misdemeanor punishable by a fine and six months of imprisonment.

The states challenging the Jorjani opinion are entitled to do ...

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