A recent decision by U.S. District Court judge Daniel Hovland might very well ring much more broadly than in just our little corner of the world. The issue was whether oil companies operating in North Dakota violated the Migratory Bird Treaty Act of 1918 by killing 28 birds which had apparently landed in collection pits currently allowed by North Dakota law. Hovland said no. I think this was a good decision.
Before anyone goes bonkers let me explain…
I’m not privy to the entire written decision of the judge, but a couple of his statements in a Bismarck Tribune story are spot on: The U.S. Fish and Wildlife Service has recognized “countless” ways in which legal acts could result in the deaths of migratory birds, Hovland wrote. Okay, then there’s this one: “It would not be feasible to prosecute all or even most of those persons or entities who technically violate the Migratory Bird Treaty Act,” the judge wrote. Exactly and that has been the problem with selective interpretation and prosecution of the law.
Oil companies have been fined or prosecuted under this law many times over the years but never does a wind power company face the same scrutiny even though wind farms likely kill more birds overall. Why? Because it doesn’t fit the model of oil and gas companies representing the Big Bad Wolf while wind power is the innocent Little Red Riding Hood.
Here’s the other huge problem the judge addresses with his second statement. If one were to make a strict interpretation of the law, any person or entity who kills a bird, unwitttingly or not, is liable for a crime. That literally means if you hit a bird with your car or if one runs into your picture window at home and dies, you should be held accountable under the law. What about the oodles of birds killed annually by running into tall buildings. Should they all be fined under the MBT Act? No, the judge has rightly set the bar higher by ruling it should be a willful act.
Now, is there a problem with current North Dakota rules. Absolutely. But that is being addressed: State regulators have proposed changes that would ban the dumping of liquid waste. A hearing on the changes is scheduled for 9 a.m. Monday at the state Capitol.
There should be pretty high environmental standards for these companies to operate in the North Dakota oil patch. An open pit with all sorts of waste should not be allowed to go uncovered or unprotected. Let’s fix that. Companies are benefitting greatly from the petro-wealth found under our state, the least we can do is to demand clean operations from them. But this is wholly separate from the legal decision.
Willy-nilly prosecutions under the Migratory Bird Treaty Act are unjust for the reasons stated above and judge Hovland is right.