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from the desk of dan ashe

To Kill a Mockingbird and the Rule of Law

By Dan Ashe
min read

As we continue to struggle through daily life amidst this pandemic, I'd like to take a moment to celebrate a genuine and significant conservation victory.

A courtroom seems an unlikely place for conservation, but recently, the U.S. District Court for the Southern District of New York, in the person of U.S. District Court Judge Valerie Caproni, issued a decision which is a victory of enormous consequence for the conservation of migratory birds. Judge Caproni's decision overturns, in compelling fashion, the misguided legal opinion of Interior Department Solicitor, Daniel Jorjani, that the 1918 Migratory Bird Treaty Act prohibits only intentional killing of migratory birds. The opening sentence in her opinion was masterpiece:

"It is not only a sin to kill a mockingbird, it is also a crime."

The Jorjani opinion was issued in the early days of the Trump Administration. It was at odds with decades of previous interpretation, by both Republican and Democratic Administrations, dating back to President Eisenhower. At that time, I joined more than a dozen former government officials who served under both Republican and Democratic Presidents, in signing a letter to then-Interior Secretary Ryan Zinke. Our request to set-aside that opinion never even received a reply. So, we all joined in filing an amicus brief in support of the litigation that resulted in Judge Caproni's decision.

Science is telling us that many species of birds are increasingly imperiled; that we have "lost" more than three billion birds in the past decade; that more than 70 percent of bird-life on the planet today consists of poultry, principally domestic chickens and turkeys. And long-distance migration is an increasingly risky proposition, confounded by habitat loss and the ecosystem havoc being rendered by climate disruption.

Judge Valeri Caproni is a conservation hero. And the obscure federal law that is the basis of her opinion—the Administrative Procedures Act or APA—is her superhero sidekick. The APA prevents a federal official from issuing decisions that are "arbitrary or capricious.” Evidently, overturning decades of prior practice in interpreting the Migratory Bird Treaty Act by "legal opinion" is the definition of arbitrary and capricious.

Conservation victories are rarely so clear and convincing!

Celebrate by taking a few moments of your day to watch a few birds, listen to their song, and give gratitude to our nation's legal system, rule-of-law, and to Judge Valerie Caproni.


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