# Incidental take and the Interior



## backcountry

So, I gave it a year but after so many decisions I'm confident in saying I'm against Zinke and his actions. Altering the interpretation and enforcement of thr 100 year old Migratory Bird Treaty to no longer protect these species from incidental take is a step too far.

This will have deleterious affects on many game birds but especially our waterfowl. The law has helped to reduce (it will never fully eliminate)the effects of industry on populations, especially across critical flyways. This has been a critical treaty for maintaining our game species. It was championed by hunting conservationist of their time like Audubon and Chapman.

http://www.hcn.org/articles/dc-dispatch-interior-cancels-decades-old-protections-for-migratory-birds

Not sure about the community's thoughts non HCN but the reporting for this article is top notch with relevant links. I found a couple quotes telling:

" Brad Bortner, who was Fish and Wildlife's chief of migratory bird management until the end of December, says he and his staff were not consulted or even given a heads-up."

No consultation with the lead agency means they are putting an agenda ahead of science-based analysis.

""This legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970s, who held that the Migratory Bird Treaty Act strictly prohibits the unregulated killing of birds," the letter states."

"All but one of the agency's directors since 1973 signed the protest, as did top Interior officials from the administrations of George W. Bush, Bill Clinton, George H.W. Bush, Jimmy Carter, Gerald Ford and Richard Nixon"

This exemplified how uncontroversial this law is across the political spectrum with conservationist.

I will let others read the link and do more research but I think its fair to conclude that Zinke is fine with harm to the bird populations we need to hunt.


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## DallanC

> Under the new interpretation, the Migratory Bird Treaty Act forbids only intentional killing - such as hunting or killing birds to get their feathers - without a permit. *The administration will no longer apply the act to industries that inadvertently kill a lot of birds through oil drilling, wind power and communications towers.* Critics fear that these industries might now end the bird-friendly practices that save large numbers of birds.


Clean power advocates should love this right? It sounds like its primarily targeted to aid wind farms that indirectly kill alot of birds. I'm ok with that actually. Wind turbines are reasonably good generators of power vs other methods.

-DallanC


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## BPturkeys

Sounds like a typical Zinke move in that he gets a few complaints about government overreach or regulations from money making organizations and simply asks..."well boys, what would you like me to do".
Its the same way he came to the monument down size conclusions/recommendations. He only gets his information and recommendations from the industries involved. 
I have yet to see him make one decision in favor of the environment or conservation over the simplest regulations that might cost some industry a few bucks. In fact, I have yet to see where he even consulted anyone other than the industries involved before making a decision. Please, correct me with an example if I am wrong here.


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## Vanilla

This administration has clearly focused much more emphasis on industry, that's for sure. This seems like an unnecessary broad stroke to correct what looks like a pretty limited problem, even if viewed from the administration's point of view. If the administration did not like how previous specific cases were handled, they certainly could give guidance on how to move forward on cases like that in the future. 

This seems to be a classic case of using a sledge hammer when a scalpel would do. Pretty disappointing.


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## Kwalk3

backcountry said:


> So, I gave it a year but after so many decisions I'm confident in saying I'm against Zinke and his actions. Altering the interpretation and enforcement of thr 100 year old Migratory Bird Treaty to no longer protect these species from incidental take is a step too far.
> 
> This will have deleterious affects on many game birds but especially our waterfowl. The law has helped to reduce (it will never fully eliminate)the effects of industry on populations, especially across critical flyways. This has been a critical treaty for maintaining our game species. It was championed by hunting conservationist of their time like Audubon and Chapman.
> 
> http://www.hcn.org/articles/dc-dispatch-interior-cancels-decades-old-protections-for-migratory-birds
> 
> Not sure about the community's thoughts non HCN but the reporting for this article is top notch with relevant links. I found a couple quotes telling:
> 
> " Brad Bortner, who was Fish and Wildlife's chief of migratory bird management until the end of December, says he and his staff were not consulted or even given a heads-up."
> 
> No consultation with the lead agency means they are putting an agenda ahead of science-based analysis.
> 
> ""This legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970s, who held that the Migratory Bird Treaty Act strictly prohibits the unregulated killing of birds," the letter states."
> 
> "All but one of the agency's directors since 1973 signed the protest, as did top Interior officials from the administrations of George W. Bush, Bill Clinton, George H.W. Bush, Jimmy Carter, Gerald Ford and Richard Nixon"
> 
> This exemplified how uncontroversial this law is across the political spectrum with conservationist.
> 
> I will let others read the link and do more research but I think its fair to conclude that Zinke is fine with harm to the bird populations we need to hunt.


Zinke's decision appears to be a decision that even the most favorable analysis would conclude didn't arise from proper research or economic reasoning.

I support responsible energy development. I understand we rely on energy in every facet of our lives. I'm also opposed to regulation for regulation's sake. However, I do believe it is necessary to monitor negative externalities arising from energy production via wind, solar, oil, nuclear, or any other method.

Sensible regulation that incentivizes energy companies to consider these externalities and try to minimize damage to the resource seems like a no-brainer to me. If the net result is more migratory birds to be viewed, or hunted, count me in.

I find myself disheartened that conservation is often weaponized and discussed as an "either or" proposition in reference to energy and industry by both sides. I also find it telling that all recent directors of administrations of both parties(sans 1) formally voiced their opposition to this specific elimination.

Some policies and regulations are beneficial to us as sportsmen, and should be considered outside the framework of whether it was our "team" that proposed, implemented, or eliminated them.


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## Catherder

I have mentioned this before in the various Zinke threads we have had on here, but in spite of whatever speeches or comments Zinke produced prior to his appointment to Interior, he is still just a puppet/mouthpiece for the administration. It is clear that Trump has a goal of reducing regulation, and I have my suspicions that he and/or his few true confidants put relatively little thought into each individual action. This would seem to be a classic example. 

IMO, griping about Zinke misses the point. It is the Trump administration that is calling the shots, not the designated mouthpiece. Blaming Zinke for this is similar to blaming Sarah Huckabee Sanders for the "sh*&#@le countries" comment. 

That said, I suspect the damage will be transient, as the Gillibrand or Winfrey administrations will likely reinstate these types of regs, possibly even overdoing it as partisan battles intensify in every facet of our lives.


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## backcountry

I appreciate the comments. Protecting migratory bird populations has been a hallmark of the hunting tradition so I was hoping to see such contributions.

Catheder, my gut agrees. But it extends beyond that. A house bill has been making its way through committee since October that basically does the same thing. My research shows its still in the introduced phase and I haven't heard much since the autumn. No matter the case, its Zinke on the hook as well since this effort is in his agency that he leads. 

Vanilla, this definitely seems like a sledgehammer when there are better tools at our disposal. 

As many have stated, I am not against working with industry to find solutions that protect wildlife populations and minimize negative impact of their work. But that doesn't require such substantial overhaul considering such collaboration already happens. 

I'll also admit I am not sure what I can do to affect the situation. I have minimal hope that phone calls or emails make much difference. I have no direct vote on Zinke and I'm not interested in talk about 2020 general elections. I don't think I'm alone in that uncertainty.


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## Catherder

backcountry said:


> I'll also admit I am not sure what I can do to affect the situation. I have minimal hope that phone calls or emails make much difference. I have no direct vote on Zinke and I'm not interested in talk about 2020 general elections. I don't think I'm alone in that uncertainty.


I hear you. I would say this though. If current trends continue, it is probable that the "D"s will retake the House of Representatives and maybe the Senate. That will make it harder for the administration to ramrod things through without compromise. (or gridlock) Also, it seems to me that Trump cares more about "winning" than any core principles. That could lead to more compromises, not less. Things could get better on issues like this. I think that the best we can do as regular citizens is make our elected officials know how we feel and support groups that fight for what we desire in the realm of conservation.


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## GaryFish

This is a swinging pendulum. As one in the environmental policy game for the past 25 years, the way the USFWS and its surrogates (state wildlife agencies and the FS and BLM) use the ESA and MBTA is scientifically and politically nausiating. The elevation of candidate species to be treated as listed, for "species of concern" to be elevated, and "BLM Sensitive" to be elevated to special treatment and dictate multiple use restrictions in order to pursue personal agendas is nothing short of abusive. The anti-everything GS-9 biostitutes that claim science on such issues are sickening at best. They talk of industry being politically motivated when they themselves use such laws for their own political agenda. That kind of crap needs to be brought back into check, as the pendulum has swung way too far the other way. Neither extreme is correct. But the attempts to create pseudo-listing categories have been near criminal. I'm of the opinion that agencies and individual civil servants who's prostituted biology has limited industry without clear legal foundation ought to be held financially accountable for such takes. 

So if this administration hits the other extreme, at least that will bring things closer to the middle ground of reasonableness. I would so love to see the ESA neutered to bring back the intent of species protection instead of putting power to stop reasonable development into the biological opinion of a GS-9 biostitute with an agenda. But that's just me.


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## paddler

Catherder said:


> I hear you. I would say this though. If current trends continue, it is probable that the "D"s will retake the House of Representatives and maybe the Senate. That will make it harder for the administration to ramrod things through without compromise. (or gridlock) Also, it seems to me that Trump cares more about "winning" than any core principles. That could lead to more compromises, not less. Things could get better on issues like this. I think that the best we can do as regular citizens is make our elected officials know how we feel and support groups that fight for what we desire in the realm of conservation.


Congress has had no say in Zinke's actions. Industry owns him, and I don't think even a Democratic Congress could change these policies. The only way to improve things is to replace him with someone more interested in conservation. Which means 2020. Lots on damage can be done in the interim. I would remind folks here that I called this in the original Zinke thread, while some here were, to a greater or lesser degree, optimistic. This was completely predictable, even inevitable, given the 2016 election.


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## Kwalk3

paddler said:


> I would remind folks here that I called this in the original Zinke thread, while some here were, to a greater or lesser degree, optimistic. This was completely predictable, even inevitable, given the 2016 election.


Thanks for reminding us. I think we all almost forgot!

In all seriousness, there is nothing wrong with having been cautiously optimistic about Zinke's appointment given the other potential options, or having an open-minded discussion about him and the policies implemented.

I've been equally willing to discuss the things I hoped for and also my (numerous)concerns. I'm not pleased with most of what has been done thus far and have tried to discuss these issues as they have come up.

I actually think some good discussion has come from it, and I've come to understand the perspective of those on either side of me on the political spectrum.

This thread has largely been an agreeable conversation between some of us who don't always see things through the same political lens.

In my opinion, the "HaHa, I told you so!!" is an unhelpful addition.


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## backcountry

Agreed, Kwalk3. My opinion adapts with information as it comes in. I started neutral to skeptically optimistic and I am now in the disappointed category. 

Rubbing our noses in it doesn't help, in any fashion. Please don't, Paddler.


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## Kwalk3

GaryFish said:


> This is a swinging pendulum. As one in the environmental policy game for the past 25 years, the way the USFWS and its surrogates (state wildlife agencies and the FS and BLM) use the ESA and MBTA is scientifically and politically nausiating. The elevation of candidate species to be treated as listed, for "species of concern" to be elevated, and "BLM Sensitive" to be elevated to special treatment and dictate multiple use restrictions in order to pursue personal agendas is nothing short of abusive. The anti-everything GS-9 biostitutes that claim science on such issues are sickening at best. They talk of industry being politically motivated when they themselves use such laws for their own political agenda. That kind of crap needs to be brought back into check, as the pendulum has swung way too far the other way. Neither extreme is correct. But the attempts to create pseudo-listing categories have been near criminal. I'm of the opinion that agencies and individual civil servants who's prostituted biology has limited industry without clear legal foundation ought to be held financially accountable for such takes.
> 
> So if this administration hits the other extreme, at least that will bring things closer to the middle ground of reasonableness. I would so love to see the ESA neutered to bring back the intent of species protection instead of putting power to stop reasonable development into the biological opinion of a GS-9 biostitute with an agenda. But that's just me.


I understand the sentiments. I think the overarching framework of the ESA needs to be revamped. It could be a tool for recovery as it is intended. It is a prime example of the left side of the spectrum weaponizing a policy or set of regulations in a manner that is detrimental to us as hunters and fishermen.

Both sides utilize the tactics, and I don't see the continuous over-corrections as a viable way forward. Volatility when it comes to public land access and management doesn't bode well for sportsmen whether the attacks come from left or right.


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## High Desert Elk

The concept and definition of navigable waterways and wetlands can be just as, if not more, damaging to migratory bird hunting as industry development is. When a rancher cannot build a stock tank or is threatened with federal action of eminent domain because of a seepage and spring, something is wrong.

GaryFish is correct with the pendulum analogy and viewpoint of the ESA needing a [body]check.


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## Kwalk3

High Desert Elk said:


> The concept and definition of navigable waterways and wetlands can be just as, if not more, damaging to migratory bird hunting as industry development is. When a rancher cannot build a stock tank or is threatened with federal action of eminent domain because of a seepage and spring, something is wrong.
> 
> GaryFish is correct with the pendulum analogy and viewpoint of the ESA needing a [body]check.


I appreciate the perspective you bring to the conversation. I may not agree with you and GaryFish as far as what and how problems need to be remedied or whether the current swing of the pendulum is beneficial, but I also haven't had the professional experience and direct interactions with those policies as you have.

There are certainly issues with the governmental regulatory structure that can and do lead to problems like you referenced above. I think it's important to note those things and figure out a way to address them. However, I don't think it is beneficial to use those instances as justification for removing seemingly sensible regulations with pretty consistent bipartisan backing(until recently.)

It seems as if the examples above were thrown out to somewhat excuse the actions of the Interior relating to the removal of the incidental take provision being discussed in this thread.

I may be misreading that, and if so, apologies in advance.


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## paddler

Kwalk3 said:


> Thanks for reminding us. I think we all almost forgot!
> 
> In all seriousness, there is nothing wrong with having been cautiously optimistic about Zinke's appointment given the other potential options, or having an open-minded discussion about him and the policies implemented.
> 
> I've been equally willing to discuss the things I hoped for and also my (numerous)concerns. I'm not pleased with most of what has been done thus far and have tried to discuss these issues as they have come up.
> 
> I actually think some good discussion has come from it, and I've come to understand the perspective of those on either side of me on the political spectrum.
> 
> This thread has largely been an agreeable conversation between some of us who don't always see things through the same political lens.
> 
> In my opinion, the "HaHa, I told you so!!" is an unhelpful addition.





backcountry said:


> Agreed, Kwalk3. My opinion adapts with information as it comes in. I started neutral to skeptically optimistic and I am now in the disappointed category.
> 
> Rubbing our noses in it doesn't help, in any fashion. Please don't, Paddler.


In my mind there was no rational reason to be optimistic about Zinke, and I never understood why anybody didn't expect the worst from the outset. I will admit that some of the posts expressing optimism about Zinke's appointment made me chuckle, while others made me shake my head.

The Republican agenda is determined by big donors like Koch. They expect a return on their investment, which includes tax breaks for themselves, less government regulation of their industries and the promotion of extraction. They plan to spend $400 million on the midterm elections to maintain Republican majorities in Congress, and their motives aren't altruistic. So again, Zinke's actions were foreseeable and inevitable.

Perhaps looking at the big picture will help you guys see things more clearly in the future. Hoping doesn't help, clinging to shreds of false promises leads only to disappointment. At any rate, it's nice to see you guys finally coming around. It's amusing that you criticize me for pointing out the obvious, perhaps you should instead try to figure out why you were so wrong about Zinke. Maybe some introspection will help down the road.


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## backcountry

We are fully aware you lack the ability to understand other's perspectives. You exhibit that fact regularly. 

My introspection is on display in this thread. I am more than willing to correct course with actual facts.


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## paddler

backcountry said:


> We are fully aware you lack the ability to understand other's perspectives. You exhibit that fact regularly.
> 
> My introspection is on display in this thread. I am more than willing to correct course with actual facts.


So, does it matter at all that my perspective has proven correct and the perspectives of many others were incorrect?


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## Kwalk3

paddler said:


> So, does it matter at all that my perspective has proven correct and the perspectives of many others were incorrect?


Apparently it does to you......


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## Catherder

paddler said:


> Congress has had no say in Zinke's actions. Industry owns him, and I don't think even a Democratic Congress could change these policies.


While it is true that congress can do little with some executive actions, I believe it is inaccurate to say that a "D" congress is impotent to stop the elimination of protections. First off, legislative actions to do similar things, as Backcountry described, will clearly end. next, congress can certainly press for or initiate and pass more conservation friendly regulation themselves, which could either pass or publicize the issue. In spite of the partisanship, most Americans do favor most environmental protections such as what is discussed here. I also stand by my statement that if faced with an antagonistic congress, Trump might try to get "wins" by making deals. I truly believe he cares more about "wins" that any one ideaology. Lastly, Trump could get impeached. So I am definitely not certain that we have 3 more years of what we had this past year.

Finally, Zinke may or may not be owned by industry, but that is frankly irrelevant. He *has *shown himself to be a loyal soldier of his boss and he clearly is marching to the orders of the President. You can subluxate your shoulder patting yourself on the back for criticizing him from the outset, but ultimately, these actions and things like the Bears Ears/GSEM shrinkages fall at the feet of Trump.


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## backcountry

paddler said:


> backcountry said:
> 
> 
> 
> We are fully aware you lack the ability to understand other's perspectives. You exhibit that fact regularly.
> 
> My introspection is on display in this thread. I am more than willing to correct course with actual facts.
> 
> 
> 
> So, does it matter at all that my perspective has proven correct and the perspectives of many others were incorrect?
Click to expand...

No, i have no interest in that game.

I am fully supportive of sharing ones views and opinions. As I have shown in other threads, I will admit when I made a factual error when provided with verifiable evidence. Beyond that, its not my job to provide validation to subjective personal opinions.

I'm here to recognize the current issue and admit my initial approach needs to change. And I can and regularly do that while recognizing the different values and perspectives still being shared.


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## paddler

Catherder said:


> While it is true that congress can do little with some executive actions, I believe it is inaccurate to say that a "D" congress is impotent to stop the elimination of protections. First off, legislative actions to do similar things, as Backcountry described, will clearly end. next, congress can certainly press for or initiate and pass more conservation friendly regulation themselves, which could either pass or publicize the issue. In spite of the partisanship, most Americans do favor most environmental protections such as what is discussed here. I also stand by my statement that if faced with an antagonistic congress, Trump might try to get "wins" by making deals. I truly believe he cares more about "wins" that any one ideaology. Lastly, Trump could get impeached. So I am definitely not certain that we have 3 more years of what we had this past year.
> 
> Finally, Zinke may or may not be owned by industry, but that is frankly irrelevant. He *has *shown himself to be a loyal soldier of his boss and he clearly is marching to the orders of the President. You can subluxate your shoulder patting yourself on the back for criticizing him from the outset, but ultimately, these actions and things like the Bears Ears/GSEM shrinkages fall at the feet of Trump.


Seems we're on the same page. From June of last year:

http://utahwildlife.net/forum/1857610-post35.html


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## High Desert Elk

I've asked the question before, and never have really got an answer. Who will pay the piper for everyone's use of resources? What region (or state) must "take one for the team"? How is that justifiable?


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## backcountry

Can you relate that back to incidental take in some way HDE? This wasn't a pro vs anti-extraction thread.


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## High Desert Elk

I didn't turn it into one either...

Anything "Zinke" on this forum seems to be pointed at extraction and anti-conservation.


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## paddler

High Desert Elk said:


> I didn't turn it into one either...
> 
> Anything "Zinke" on this forum seems to be pointed at extraction and anti-conservation.


Yep, he is. See the original post on this thread.


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## backcountry

Nice try paddler.

HDE cherry-picked my statement, maybe unintentionally. I didn't say "extraction and anti-conservation" but "this isn't a pro vs anti-extraction thread."

And despite your own attempt this thread was started about the changes to incidental take and how I see Zinke's policy change in the Interior to be problematic to hunters and animal populations they rely upon.

It would be a strawman to claim that means I think extraction is anti-conservation. I have actually challenged you multiple times on that narrow worldview and remain consistent that conservation isn't the sole property of anti-extraction environmentalist. My explicit statement at the end of my first contribution was "I think its fair to conclude that Zinke is fine with harm to the bird populations we need to hunt". My statements and intent were clear and remain about the specific and narrow issue of Zinke's new rule on incidental take. 

Paddler, stop oversimplifying others contributions to fit your narrow worldview.


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## paddler

backcountry said:


> Nice try paddler.
> 
> HDE cherry-picked my statement, maybe unintentionally. I didn't say "extraction and anti-conservation" but "this isn't a pro vs anti-extraction thread."
> 
> And despite your own attempt this thread was started about the changes to incidental take and how I see Zinke's policy change in the Interior to be problematic to hunters and animal populations they rely upon.
> 
> It would be a strawman to claim that means I think extraction is anti-conservation. I have actually challenged you multiple times on that narrow worldview and remain consistent that conservation isn't the sole property of anti-extraction environmentalist. My explicit statement at the end of my first contribution was "I think its fair to conclude that Zinke is fine with harm to the bird populations we need to hunt". My statements and intent were clear and remain about the specific and narrow issue of Zinke's new rule on incidental take.
> 
> Paddler, stop oversimplifying others contributions to fit your narrow worldview.


I'm not reading into or co-opting your statements. I was referring only to the first sentence in your initial post on this thread:

*So, I gave it a year but after so many decisions I'm confident in saying I'm against Zinke and his actions.*

I agree with your assessment, I do not recall anything he's done that I would support. I wasn't referring to extraction, and do not believe extraction is synonymous with anti-conservation.


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## GaryFish

If Zinke is doing what the President directs, then that is called doing his job. The job of EVERY cabinet member is to carry out the policy of the President. That simple. Both parties work that way. And any Secretary of XYZ Department that doesn't do that should be fired. 

Back to the question on incidental take, this goes to the pendulum. I've been part of public land energy extraction negotiations where we had maximum conservation/environmental protection interests and energy interests in the same room. Literally, we had Audubon Society (and others) and Chevron reps (and others) in the same room for a week working things out. For every conservation "challenge" we came up with a solution - mitigation - design feature - seasonal restrictions - buffer zones - habitat enhancements - etc... until everyone agreed on things. That kind of problem solving is incredibly productive and things get done and critters and habitats get protected. Where things break down is after that kind of honest and open discussion and problem solving, for a conservation group to come back four years later, after millions have been invested in mitigating impacts, and screams foul or wants things shut down. 

For example, you can have a wind energy project where the developer integrates every single design feature possible to eliminate nesting and perching on the turbines, ensures against habitat fragmentation on the ground, and even develops water features and habitat improvements off location to draw wildlife - prey base for raptors - away from the site as requested. And then allowed for incidental take should a really stupid hawk or eagle get clocked by a turbine blade. But then after that happens, even if there are adequate populations of said hawk or eagle, USFWS flips their burecratic lid because some master's student publishes a poorly constructed thesis structured around a series of four field day observations and two dead eagle carcasses and everyone goes ballistic and wants to shut the wind farm down. And a President sympathetic to the cause of the big evil wind turbines - funded by his clear energy program - lets his Interior Secretary shut down a multi-million dollar facility that played by the rules just because statistically, there will be eagles that are stupid enough to fly into the path of a wind turbine. So now we get a President that is not as sympathetic about a suicidal eagle and if he were smart enough to spell ESA, directs his Secretary of the Interior to re-define incidental take because the CEO of the wind farm tweeted to him that is what he should do. NEITHER is how it should work because lets be honest - no one likes dead eagles -even stupid ones - but we do want cleaner energy options and spinning wind turbines kill less than trains carrying coal to power plants so where does that leave us? 

It leaves us watching "The Eagles - Featuring Vince Gill" since Glen Fry bought the farm. And Don Henley can't sing lead on every dang song and Nick Freaking Foles is somehow starting QB in the Super Bowl!

Patriots by 5.


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## DallanC

GaryFish said:


> Patriots by 5.


Most of the eagles team are sick currently. Pats by 15

-DallanC


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## GaryFish

Top of page!

Dilly! Dilly!


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## backcountry

Really appreciate your thoughts, GaryFish. I fully recognize how years of collaboration can be undermined due to bad faith actions of a minority group or interest. And I also find it disheartening to see how quickly a new administration can change policy without expert input (see Trump's recent statement that he wanted to add ANWR to the tax law because a friend called him). 

Recommending we boycott the Super Bowl so I can get avocados on sale after stores overstock. You almost have to be the 1% to afford those things at retail price.


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## johnnycake

I find it interesting how this discussion, like many others on this particular topic, is missing any mention of the purposes behind the implementation of the Migratory Bird Treaty Act, Raptor Act, ESA, etc that are affected by this recent memorandum from DOI. Catastrophic declines in bird populations primarily due to market hunting and other industries. How are those bird populations doing today? If a population recovers sufficiently such that the incidental take does not reasonably pose a threat to survival, what is the continuing need for the protection? This doesn't allow a writ-large slaughter on birds, and I personally think the general benefits of the decision, which will amount to some additional $ available to hire people, buy other materials, new investment etc. albeit quite small as a percentage of the industry, outweigh the need to punish industry for unintentional takings of birds with stable populations.

BTW, the Memo can be found here: https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf

Also, there is an absence of discussion about how this "change" is only a different administrative conclusion to what the Obama administration reached on January 17, 2017, which was suspended on February 7, 2017. Prior to the Obama administration's sunset conclusion, the Circuit Courts were split as to whether the Migratory Bird Treaty Act covered incidental take or not. There is an excellent discussion of the history of the Act and its enforcement over the years in the memo. I highly encourage people to read it, and not just news articles about the memo, prior to forming an opinion on the topic.


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## Vanilla

Thanks for the reality slap cakeboy. It’s always good to be educated on a topic. I learned a few things from that. Thank goodness for lawyers!


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## johnnycake

Vanilla said:


> Thanks for the reality slap cakeboy. It's always good to be educated on a topic. I learned a few things from that. Thank goodness for lawyers!


Really deep down, even lawyers are good people. That is why we get buried 18' deep instead of the usual 6.


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## Catherder

Ok, the document is interesting as heck, but I'm only half through it and trying to finish up an 11 hour day here at work. I do have a question for the UWN legal staff however. 

Since this is a treaty, isn't it the responsibility of Congress to change/ratify treaties and the sole responsibility of the Judiciary to interpret the law? Why is the Executive (either Obama or Trump, so non partisan question;-) ) rendering interpretations on the law/treaty? Is this (or Barry's last year) action challengable in court? 

I'm not stating opinion with this, just want to know the answer.


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## johnnycake

The executive is charged with enforcing the laws, and in this instance "incidental take" is not found in the law. Due to inconsistent enforcement by various officials in the regulatory agency and inconsistent interpretations by the courts, the executive requested that the agency make a decision on the matter and enforce it the same way everywhere. Obama's admin made a last minute call, new admin put it on hold and came to a different decision ten months later.


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## backcountry

johnnycake said:


> I find it interesting how this discussion, like many others on this particular topic, is missing any mention of the purposes behind the implementation of the Migratory Bird Treaty Act, Raptor Act, ESA, etc that are affected by this recent memorandum from DOI. Catastrophic declines in bird populations primarily due to market hunting and other industries. How are those bird populations doing today? If a population recovers sufficiently such that the incidental take does not reasonably pose a threat to survival, what is the continuing need for the protection? This doesn't allow a writ-large slaughter on birds, and I personally think the general benefits of the decision, which will amount to some additional $ available to hire people, buy other materials, new investment etc. albeit quite small as a percentage of the industry, outweigh the need to punish industry for unintentional takings of birds with stable populations.
> 
> BTW, the Memo can be found here: https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf
> 
> Also, there is an absence of discussion about how this "change" is only a different administrative conclusion to what the Obama administration reached on January 17, 2017, which was suspended on February 7, 2017. Prior to the Obama administration's sunset conclusion, the Circuit Courts were split as to whether the Migratory Bird Treaty Act covered incidental take or not. There is an excellent discussion of the history of the Act and its enforcement over the years in the memo. I highly encourage people to read it, and not just news articles about the memo, prior to forming an opinion on the topic.


Are you sure your conclusion about the Jan 2017 opinion? Its M-37041 "Incidental Take Prohibited Under the Migratory Bird Treaty Act " (MBTA) and it concludes:

" In sum, the MBTA's broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing. Moreover, the prohibitions of the MBTA, as informed by the underlying treaties, are not limited to hunting, poaching, or any particular factual context; rather, they extend generally to unauthorized take or killing of migratory birds, including take that is incidental to industrial or commercial activities"

"Based on the analysis above, I conclude that the MBTA's prohibitions on taking and killing migratory birds apply broadly to any activity, subject to the limits of proximate causation, and are not limited to certain factual contexts. Therefore, those prohibitions can and do apply to direct incidental take. "

It would appear from my reading that the title is accurate in their conclusion that "incidental take [is] prohibited under the" MBTA.

Compare that to the current Solicitor's Opinion, M-37050 "The Migratory Bird Treaty Act Does Not Prohibit Incidental Take":

"Thus, based on the foregoing, we conclude that the MBTA's prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same applies only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human
control. "

The Solicitor's conclusion, M-37041, which happened Obama in Jan 2017, stands in direct opposition to the Principle Deputy Solicitor's opinion M-37050 just released under Trump.

Interesting enough, the new Deputy Solicitor General for the DOI is Daniel H Jorjani who recently worked for the Charles Koch Foundation, Charles Koch Institute and the Freedom Partners. One interesting element of his past was working for the Bush era DOI head that "proposed privatization of National Park Service jobs," which failed. He was also an architect for the controversial America the Beautiful pass that cost $80 and is now proposed to increase; remember the halcyon days of affordable public lands access? As "a key employee" and "highest paid employees" in the Koch brothers programs he helped steer an estimated $300 million dollars in ad money to influence the national conversation on American energy development.

Point being, I'm not sure the opinion released under Trump is a continuation of the one released under Obama. I think they are diametrically opposed.

https://www.doi.gov/solicitor/opinions
https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf
https://www.eenews.net/assets/2017/02/21/document_ew_01.pdf


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## backcountry

There has been historical disagreements about enforcement of incidental take under the MBTA. But the USFWS has been empowered to do so long before M-37041.


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## johnnycake

backcountry said:


> Point being, I'm not sure the opinion released under Trump is a continuation of the one released under Obama. I think they are diametrically opposed.
> 
> https://www.doi.gov/solicitor/opinions
> https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf
> https://www.eenews.net/assets/2017/02/21/document_ew_01.pdf


Your post has me a bit confused, as that's exactly my point. Obama's administration issued an interpretation three days before the end of his term. That interpretation was placed on hold pending further review two weeks after Trump took office and his agency came to the opposite conclusion. Some courts in the past have agreed with the Obama administration's interpretation, others with the Trump administration. The takeaway being, reasonable minds can reach different conclusions on the issue.


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## Catherder

johnnycake said:


> Some courts in the past have agreed with the Obama administration's interpretation, others with the Trump administration. The takeaway being, reasonable minds can reach different conclusions on the issue.


This is what I find curious about this issue. It would seem that the issue could be definitively settled in the courts and not get volleyed back and forth depending on the political leanings of the administration in power.

Hey, TOTP


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## paddler

I found the Deputy Solicitor's argument unconvincing. Makes sense he's a Koch alumnus. As I said on another thread, the Koch brothers plan to invest $400 million in 2018 to try to maintain Republican majorities in Congress. They expect a decent ROI.


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## backcountry

johnnycake said:


> backcountry said:
> 
> 
> 
> Point being, I'm not sure the opinion released under Trump is a continuation of the one released under Obama. I think they are diametrically opposed.
> 
> https://www.doi.gov/solicitor/opinions
> https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf
> https://www.eenews.net/assets/2017/02/21/document_ew_01.pdf
> 
> 
> 
> Your post has me a bit confused, as that's exactly my point. Obama's administration issued an interpretation three days before the end of his term. That interpretation was placed on hold pending further review two weeks after Trump took office and his agency came to the opposite conclusion. Some courts in the past have agreed with the Obama administration's interpretation, others with the Trump administration. The takeaway being, reasonable minds can reach different conclusions on the issue.
Click to expand...

I misread your original statement. I thought you had meant they were are only subtly different hence the shock over why no one was discussing the Obama memo. Sorry for misunderstanding. I seem to be brain farting a bit the last two days.


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## johnnycake

Catherder said:


> This is what I find curious about this issue. It would seem that the issue could be definitively settled in the courts and not get volleyed back and forth depending on the political leanings of the administration in power.
> 
> Hey, TOTP


The Supreme Court hasn't chosen to take up the issue which is why it was being enforced inconsistently until the agency took a final stance. Now that the interpretation is in place and unlikely to be reversed for a few years I'd imagine a challenge on the circuit splits could find its way to the Supreme Court to settle it once and for all. Or at least until Congress amends it or something.


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## johnnycake

paddler said:


> I found the Deputy Solicitor's argument unconvincing. Makes sense he's a Koch alumnus. As I said on another thread, the Koch brothers plan to invest $400 million in 2018 to try to maintain Republican majorities in Congress. They expect a decent ROI.


Cool story bro. Needs more dragons.


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## paddler

johnnycake said:


> Cool story bro. Needs more dragons.


Really, bro? Do tell.


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## Vanilla

Vanilla said:


> This administration has clearly focused much more emphasis on industry, that's for sure. This seems like an unnecessary broad stroke to correct what looks like a pretty limited problem, even if viewed from the administration's point of view. If the administration did not like how previous specific cases were handled, they certainly could give guidance on how to move forward on cases like that in the future.
> 
> This seems to be a classic case of using a sledge hammer when a scalpel would do. Pretty disappointing.


I appreciate johnnycake dropping some knowledge on me on this one. This post above was pretty misinformed, and while some of the general points of it still remain, the specific purpose of it related to this thread was misguided, so I retract it. My disappointment exists in other areas, but not this one.

Education received, and appreciated. I was wrong.


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## Kwalk3

Agreed Vanilla. In my opinion this is how a discussion should function. Everybody learns a little bit and we get a little better understanding of what's actually going on above the partisan noise.

Thanks for the details johnnycake. I haven't fully dissected everything yet, but am appreciative for the clarifications.


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## johnnycake

Now hold on just a second here. See these are the interwebs. One side is supposed to make wildly outlandish claims, then the other side is supposed to make their angry noises and nobody is actually supposed get their opinions swayed!!!

You have me questioning my faith in this whole system. Great.


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## Catherder

Well, I finally got around to finish reading the memo and am glad it was posted. It certainly sheds a better light on the overall issue. I have to agree with Mr. Cake that reasonable people can agree on different interpretations of this. 

As for opinion, I can certainly see benefits from both interpretations. The strict interpretation allowed the government to quickly end the use of DDT when it was a threat. That was a major environmental threat that was taken care of by good Government action. On the other hand, strict interpretation makes cat ownership, driving a car, or commercial aircraft operation a violation. (much more could be under scrutiny than bird chopping wind farms) I find that unacceptable. Either side could pursue an extreme position that could be a real mess for the public interest and conservation. 

All that said, I am more comfortable with the decision and would welcome more refinement from Congress and/or clarification from the courts.


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## backcountry

Still reading through the many pages of the Opinions highlighted. My quick word search with "incidental take" revealed what much of us have already said but a detailed read is in order. 

I appreciate the dialog and being able to apologize for mistakes without being ridiculed.


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## GaryFish

Pretty good thoughts for a guy that fishes with bobbers! 



Catherder said:


> Well, I finally got around to finish reading the memo and am glad it was posted. It certainly sheds a better light on the overall issue. I have to agree with Mr. Cake that reasonable people can agree on different interpretations of this.
> 
> As for opinion, I can certainly see benefits from both interpretations. The strict interpretation allowed the government to quickly end the use of DDT when it was a threat. That was a major environmental threat that was taken care of by good Government action. On the other hand, strict interpretation makes cat ownership, driving a car, or commercial aircraft operation a violation. (much more could be under scrutiny than bird chopping wind farms) I find that unacceptable. Either side could pursue an extreme position that could be a real mess for the public interest and conservation.
> 
> All that said, I am more comfortable with the decision and would welcome more refinement from Congress and/or clarification from the courts.


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