A Canada-U.S. flap over protecting migratory birds takes new twist

The Biden administration has paused a Trump-era regulation that the Canadian government complained about. It involves the killing of migratory birds — and when to hold humans accountable.

Biden administration pauses a Trump-era regulation Canada complained about

More than 1,000 migratory bird species are affected by a proposed U.S. regulation, including the sandpiper, seen in the foreground, and geese, seen in the background of this 2007 photo from New York City. (Mike Segar/Reuters)

This story is part of Watching Washington, a regular dispatch from CBC News correspondents reporting on U.S. politics and developments that affect Canadians.

What's new

There are competing schools of thought on when to punish someone for killing a migratory bird, and the Canadian government found itself at odds with the Trump administration.

There's the broad, existing practice: that penalties should apply to industries whose products and activities accidentally kill birds, such as oil wells, buildings and power lines.

Then there's the narrower interpretation: that punishment be limited to people who intentionally kill a bird unlawfully — by poisoning, trapping or shooting without a licence.

The Canadian government supports the existing interpretation of a century-old international treaty that protects hundreds of species that flutter across the border.

The Trump administration planned to limit penalties under a new regulation that was going to take effect this week on U.S. territory.

Now that move has been delayed by the new U.S. administration. Apparently some chirping from Ottawa played a role in that pause.

On Tuesday, the U.S. Fish and Wildlife Service announced a one-month delay to allow further public comment on the new regulation.

The rule would protect normal industrial activity from liability, and would reserve fines for those who intentionally set out to unlawfully kill birds.

It would apply to more than 1,000 bird species, according to a U.S. government's environmental study, including ducks, geese, swans, herons, cormorants, plovers, hummingbirds and sparrows.

The study said hundreds of thousands of birds were killed over a recent nine-year period in the U.S. by regular human activity, including things such as buildings, communications towers and oil pits.

Fines and civil penalties associated with accidental cases totalled about $105.8 million US over that same period from 2010 to 2018.

The U.S. federal study notes that bird populations are already in decline. 

But it says illicit activity is only responsible for a small portion of those deaths. The Fish and Wildlife Service estimates, for example, that about 1,000 golden eagles are illegally shot each year in the U.S., which covers roughly 17 per cent of all golden eagle deaths.

What's the Canadian role

Enter the Canadian government. 

Ottawa complained that the move violated the spirit of a 1916 cross-border agreement. It said the Trump administration move would imperil the 80 per cent of migratory birds in Canada that pass through the U.S. Canada submitted a formal complaint as part of the U.S. rule-drafting process but the last administration rejected it.

Now, the new administration has cited three reasons for hitting the pause button: environmental concerns, potential litigation, and the effect on several treaty partners.

The U.S. administration specifically mentioned the Canadian objection in announcing the one-month pause.

Canadian Environment Minister Jonathan Wilkinson, seen here on Dec. 11, 2020, complained about the Trump administration's new migratory bird regulation. (Justin Tang/The Canadian Press)

"The public has a strong interest in conserving the migratory bird resource and fulfilling shared objectives and obligations with a treaty partner, Canada," said Tuesday's regulatory announcement. 

"These interests could be harmed by allowing this regulation to take effect on its current effective date."

What's next

A period for public comment has been reopened. People are invited to submit reactions to the proposed change. 

Comments are allowed until March 1. 

The new rule, which was supposed to kick in Feb. 8, has now been delayed until at least March 8. That's if the Biden administration doesn't cancel the rule entirely. The new administration has told a Federal Court that it could completely withdraw the Trump-era rule.