Audubon, Other Groups Can Continue Lawsuit against the Federal Government to Protect Birds, Federal Judge Rules

A federal court greenlights a joint lawsuit to defend the Migratory Bird Treaty Act despite the administration’s efforts to hand industry a blank check for bird deaths.
Snowy Egret in flight

NEW YORK – “If the White House expected to gut the most important bird protection law without a fight, then they underestimated the National Audubon Society and America’s 46 million bird-lovers,” said David Yarnold (@david_yarnold), president and CEO of National Audubon Society, in response to a decision by the U.S. District Court for the Southern District of New York to allow Audubon v. Department of the Interior to proceed, rejecting an effort by the government to dismiss the lawsuit.

“Industries that kill birds have been held accountable for decades, and we’ll fight and win in the courts to protect the birds Americans love,” said Yarnold.

Audubon and other conservation groups filed suit in May 2018 challenging an opinion by the Department of the Interior’s Solicitor’s Office saying it will no longer enforce the MBTA in cases of incidental bird deaths. This decision effectively gives a blank check to industry to avoid measures that reduce gruesome and preventable bird deaths. Eight states filed a similar suit in September 2018. The opinion undermines the Migratory Bird Treaty Act's (MBTA) prohibition on the killing or "taking" of migratory birds, which has long been understood to include the “incidental” take of birds from industrial activities like birds flying into uncovered oil pits or other predictable and avoidable or negligent killing.

Under the Trump administration's revised interpretation, the MBTA’s protections apply only to activities that purposefully kill birds. Any “incidental” take—no matter how inevitable, avoidable or devastating the impact on birds—becomes immune from enforcement under the law.  Additionally, for decades, industry has worked with the U.S. Fish and Wildlife Service to take common sense precautions like covering oil waste pits so birds don’t mistake them for safe ponds; insulating small sections of power lines so raptors don’t get electrocuted; siting wind farms away from bird migration routes and habitats. The law has also provided accountability and recovery after oil spills like the Deepwater Horizon.

In honor of the 100th anniversary of the Migratory Bird Treaty Act, 2018 was declared The Year of the Bird. More than 60 cities, counties and states passed proclamations in celebration of the MBTA’s success.

17 former Interior Department officials wrote a letter asking the administration to suspend the opinion, as did dozens of members of Congress and more than 500 wildlife and environmental groups from all 50 states.

Audubon and its 1.4 million members will mobilize to reverse this policy and oppose any effort that weakens our most important bird protection law.

Audubon is joined in the lawsuit by the Center for Biological Diversity (“Center”), Defenders of Wildlife, and the American Bird Conservancy. The groups’ lead counsel is Eric Glitzenstein, director of litigation for the Center.  

Contact: Nicolas Gonzalez,, (212) 979-3068 (media inquiries)

                Eric Glitzenstein, (202) 849-8401 ext. 109 (legal inquiries)             

The National Audubon Society protects birds and the places they need, today and tomorrow. Audubon works throughout the Americas using science, advocacy, education and on-the-ground conservation. State programs, nature centers, chapters, and partners give Audubon an unparalleled wingspan that reaches millions of people each year to inform, inspire, and unite diverse communities in conservation action. A nonprofit conservation organization since 1905, Audubon believes in a world in which people and wildlife thrive. Learn more how to help at and follow us on Twitter and Instagram at @audubonsociety.