[Congressional Record Volume 168, Number 13 (Thursday, January 20, 2022)]
[Senate]
[Page S379]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       MIGRATORY BIRD TREATY ACT

  Mr. BARRASSO. Mr. President, I often hear from people in Wyoming who 
are concerned about the changes being proposed in Washington, DC. When 
the Federal Government changes the rules, authorities, or standards, it 
can significantly impact critical Wyoming industries.
  In the ``Wyoming Livestock Roundup,'' a weekly news source for 
Wyoming's ranchers, farmers, and Agribusiness community, Sarah L. Falen 
authored an opinion editorial titled ``The Government's Word: Should We 
Trust It.''
  She raises concerns about the Biden administration's rule revoking 
the Trump administration policy prohibiting prosecution for 
accidentally harming migratory birds under the Migratory Bird Treaty 
Act. While there has been a lot of discussion about the impact on the 
energy industries, Sarah Falen points out how the new rule could affect 
the agriculture industry. It is important that Congress note these 
consequences and the uncertainty created by the Biden administration's 
rule.
  Mr. President, I ask unanimous consent to have printed in the Record 
the opinion editorial written by Sarah L. Falen.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               The Government's Word: Should We Trust It?

                          (By Sarah L. Fallen)

       Americans trust the U.S. government less and less. In fact, 
     according to the Edelman Trust Barometer, trust in the 
     federal government hovers around 40%. Yet, with the 
     revocation of the Trump Administration's rule that prohibits 
     prosecution for accidentally harming migratory birds under 
     the Migratory Bird Treaty Act (MBTA), the Biden 
     Administration is asking citizens to do just that, ``trust'' 
     the federal government.
       People involved in industries such as energy or agriculture 
     have a clear understanding of how environmental legislation, 
     originally passed with the best intention, has been 
     weaponized to negatively affect their livelihoods. One of the 
     lesser known, but just as dangerous environmental swords is 
     the MBTA. While it is easy to see that energy industries, 
     such as oil and gas, wind or even solar would be impacted by 
     the Biden decision, this Act has the potential for very 
     serious impacts on the agriculture industry.
       The MBTA is a statute that allows for the criminal 
     prosecution of any person who ``incidentally takes'' a 
     migratory bird. To understand the breath of this Act, there 
     are two important concepts. First, nearly all birds in the 
     U.S. are considered migratory. Second, what constitutes an 
     ``incidental take.'' The MBTA states that ``it [is] unlawful 
     at any time, . . . to pursue, hunt, take, capture, kill, . . 
     . any migratory bird . . .'' 16 U.S.C. 703(a). If you read 
     that language, it would make sense that this Act is referring 
     to someone who intends to kill a migratory bird. That 
     commonsense reading is what the Trump MBTA rule enforced . . 
     . only those engaged in an action that purposefully ``takes'' 
     a migratory bird would be subject to fines and prison time. 
     This is not how the Biden Administration reads that language.
       According to the Biden Administration, even if a person is 
     doing something that accidentally harms a migratory bird, 
     that person can still be criminally liable. Thus, someone can 
     be prosecuted for an action or inaction that is otherwise 
     legal, but just so happens to ``take'' a migratory bird.
       We should all be concerned about the Biden Administration 
     allowing ``incidental take'' to be prosecuted because there 
     is no limit on what can be prosecuted. This means that if a 
     farmer uses a pesticide that is legally administered and a 
     migratory bird just so happens to ingest that pesticide, he 
     could be subject to criminal prosecution. The MBTA allows for 
     up to a $5,000 fine or six months in prison for an incidental 
     take.
       The scenarios under which a person can accidentally kill a 
     migratory bird are infinite and can be ridiculous. Yet, the 
     government expects us to believe that they will only 
     prosecute ``foreseeable'' accidental killings of migratory 
     birds. It is foreseeable that a bird can ingest a legally 
     administered pesticide. Are farmers now risking prison time 
     for growing the food that feeds America and the world?
       The Biden Administration has entertained the idea of an 
     ``incidental take permit'' that might remove some of the 
     liability for birds that are accidentally killed, however 
     they have not developed the idea enough to know what the 
     permit would look like. There aren't any standards for what 
     actions would be exempt from liability under the permit 
     system and the MBTA office doesn't have enough staff to begin 
     handling the undoubtedly thousands of permit applications 
     they will receive.
       The government has often implemented rules, promising it 
     will not take advantage of its authority, but time after time 
     this has proven to be just a way to get a rule approved or 
     legislation passed. From wolves and grizzly bears to ever 
     changing definitions of ``navigable waters,'' the government 
     has proven that its word should not be trusted and the MBTA 
     is no exception.

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