Federal court: Intent matters in migratory-bird deaths

FORT WORTH, Texas (AP) — Companies accused of causing migratory bird deaths may be harder to successfully prosecute after a federal appeals court recently ruled that a century-old wildlife protection law only applies if the killing is intentional.

The decision by the 5th U.S. Circuit Court of Appeals runs contrary to two other federal courts' interpretations of the 1918 Migratory Bird Treaty Act and could save companies that operate wind farms, power transmission lines and other methods of energy production millions in research — at the risk of more bird deaths.

"If you have a dead migratory bird, you have a violation. Doesn't matter how, why or when; that's historically been the government's interpretation," said Barry Hartman of K&L Gates, a Washington law firm that represents Duke Energy Corp. "And what the court is saying is that interpretation doesn't extend to unintentional takes."

The U.S. Fish and Wildlife Service has maintained that no intent is required to violate the law, which makes it illegal to "pursue, hunt, take, capture" or "kill" more than 1,000 bird species. But companies have long claimed they should not be held responsible for actions that incidentally cause deaths — up to about a half-million annually by wind turbines alone, the federal agency says.

The nation's appellate courts have starkly different interpretations of the law, resulting in an uneven enforcement across the country, with companies in some energy-rich states facing a narrower liability toward migratory birds t

han operations in other regions. (by Emily Schmalz, Texas Associated Press)

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