House panel's subpoena on bird laws 'enormously disruptive,' expensive -- FWS chief

E&E News
By Phil Taylor
March 26, 2014

A subpoena issued this month by House Republicans into the Obama administration's enforcement of bird protection laws has prevented scores of law enforcement officers from pursuing illegal wildlife trafficking and has imposed unnecessary costs on taxpayers, Fish and Wildlife Service Director Dan Ashe said today.

Compliance with the Natural Resources Committee's subpoena has required 125 agency employees to work 2,600 hours at a taxpayer cost of $150,000 dollars, Ashe said. More than 50 of those employees are special agents from FWS's law enforcement office, which represents one-fourth of its force, he said.

"I really believe the subpoena was unnecessary, and it has been enormously disruptive to agency mission and expensive to the taxpayer," Ashe told the committee at a hearing to discuss the implementation of the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act.

"These are the world's most highly trained wildlife law enforcement professionals, and right now they're sidelined while internationally syndicated criminal rings are decimating elephants, rhinos and other iconic species," said Ashe, who estimated it will take the agency three months to fully comply with the subpoena.

But Natural Resources Chairman Doc Hastings (R-Wash.) said the subpoena was "an unfortunate last resort" resulting from what he argued was the administration's deliberate "slow-rolling of documents and answers" to the committee's inquiries dating back to last May.

"The Obama administration has been less than transparent on this topic," Hastings said. "The department has engaged in a deliberate, 10-month-long slow roll in fulfilling the committee's requests for documents and information."

The subpoena sought unredacted copies of emails and other internal documents as well as information about enforcement cases, internal policies and regulations that the committee said have been withheld.

Hastings said Fish and Wildlife waited four months to produce fewer than 70 pages of emails and meeting materials about "a secret bird mortality database" and took six months to provide a copy of a two-page policy memo that was written the year before.

Ashe said some of those delays can be attributed to the manner in which those documents were requested -- they were bundled into larger document requests rather than requested individually by phone or through personal meetings.

He said the March 11 subpoena "raised substantial new issues" by requesting hundreds of case files going back to 2009. To be responsive, the agency must break those files into separate documents and format them appropriately.

The agency at times must redact its responses to protect personal information or propriety industry data, he said, though he added that such legal determinations are made elsewhere at Interior.

"I have without exception always made myself and the employees and the officers of my organization available to this committee and to its members," Ashe said.

Since May, Interior has provided about 5,000 pages of documents to the committee, Ashe said.

Republicans in Congress have accused the administration of selectively enforcing the bird laws -- giving preference to wind and solar plants while persecuting oil and gas companies.

"This hearing is not an attack on the wind industry or wind energy," Hastings said. But "there are legitimate concerns that the Obama administration is implementing these laws in an arbitrary fashion."

Democrats argued that, if anything, the administration is disproportionately prosecuting the wind industry, given the size of the industry’s footprint and bird impacts compared to oil and gas.

Ashe said that there are an estimated 876,000 oil and gas wells in the Lower 48 states that kill or harm between 1 million and 2 million birds annually, and that FWS is investigating 21 cases. The wind industry is estimated to kill or harm some half a million birds annually. FWS is actively investigating 17 cases and has referred seven to the Justice Department.

Both bird laws cast a sweeping net -- it is essentially illegal to kill or harm a bald or golden eagle or any of several hundreds of migratory birds without a permit -- so enforcement, by its very nature, is selective, Ashe said.

For example, if someone drives 56 miles per hour in a 55 mph zone, it is impractical to pull the person over even though he or she is breaking the law, he said.

Vehicles and buildings kill several times as many protected birds annually as either oil and gas or wind farms. Ashe said prosecution depends in large part on whether companies made a good faith effort to collaborate with Fish and Wildlife and properly site and operate their activities.

Still, Hastings argued that the subpoena he issued asked for nothing new, and that it's unreasonable for the committee to have to wait months for responses from the agency.

After starting its investigation in May, the committee waited until September for its first response, he said. "That does not suggest to me collaboration," Hastings said.