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To Kill a Migratory Bird: How Incidental Takes by Commercial Industry Activity Should Be Regulated by a New Civil Penalty Regime, Not the Current MBTA
Get PDFMigratory birds are at odds with commercial industries in the United States. Industries are occasionally and accidentally killing migratory birds through their legal activity. Such actions against migratory birds are known as incidental takes. While the century-old Migratory Bird Treaty Act (MBTA) prohibits the taking of migratory birds, it is unclear as to whether it prohibits these modern-day incidental takes. The MBTA imposes criminal strict liability on those who violate its prohibitions, regardless of one\u27s mental state at the time of the incident. Should the federal government hold commercial industries criminally liable for incidentally taking migratory birds through otherwise legal activity? This is the question Circuit Courts have faced and ardently tried to answer, creating a circuit split over the reach of the MBTA as applied to incidental takes.
This Article first argues that criminal strict liability must be rejected as it applies to incidental takes under the MBTA. Congress enacted the MBTA to protect migratory birds against takes by hunters and poachers, not unintentional takes by commercial industries. And no other federal regulation protecting migratory birds still utilizes criminal strict liability for incidental takes. Though the Fish and Wildlife Service (FWS) has suggested an incidental take program that would permit industries to take birds, industries without a permit would still be subject to prosecution under the MBTA. Presently, implementing such a program would be problematic and premature. In essence, it would be like trying to fit a square peg into a round hole.
This Article then proposes a new civil penalty regime under the MBTA to account for the incidental takes by commercial industries. Such a provision would mirror every other federal migratory-bird regulation. Rather than prosecuting industries, a civil penalty regime willfine industries and deter them from incidental takes of migratory birds. Civil penalties will protect industries from overly harsh punishments and protect migratory birds by putting the fine monies in the Migratory Bird Conservation Fund Applying the current MBTA to incidental takes is another attempt at trying to fit a square peg into a round hole. Judges and government agencies have tried every peg in the box. Now it is time for lawmakers to craft one that fits
The Use of Property Law Tools for Soil Protection
Get PDFPublished in International Yearbook of Soil Law and Policy 2017, Harald Ginzky, Elizabeth Dooley, Irene L. Heuser, Emmanuel Kasimbazi, Till Markus & Tianbao Qin, eds.
Open Access This book is licensed under the terms of the Creative Commons Attribution 4.0 International License, which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.
The images or other third party material in this book are included in the book’s Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the book’s Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.https://digitalcommons.law.buffalo.edu/book_sections/1276/thumbnail.jp
Renouncing Citizenship as Protest: Reflections by a Jewish Israeli Ethnographer
Get PDFThe events of summer 2014 and the painful realizations that they invoked have led me to consider renouncing my Israeli citizenship. Contemplating what may seem like a straightforward stance of resistance, I have come to realize how complex it actually is. This short essay considers renunciation as an act of protest from the standpoint of a Jewish Israeli legal ethnographer and geographer... [The essay] foregrounds the following questions: aren’t all modern states founded upon bloodshed? And, if so, shouldn’t all citizens be renouncing their citizenship? Or from the opposite angle: why bother replacing one flawed citizenship with another? In my own case, how is my current US citizenship better than the Israeli one that I am considering renouncing? What, if any, is a citizen’s responsibility vis-à-vis her nation-state(s), and how far back does this responsibility go? As a citizen of the United States, am I now responsible for slavery? For the war in Iraq? For the continued oppression of people of color and the ongoing colonization of Puerto Rico? And does this responsibility change if I hold double or even multiple citizenships?... In any case, the renunciation of citizenship as protest cannot be a renunciation of responsibility to redress injustice, a shedding of liabilities; it is, rather, a taking on of enhanced responsibility, an act of care
Marijuana Edibles and “Gummy Bears”
Get PDFContemporary American society has decided that, whatever may be the benefits and harms of liberalizing marijuana use by adults, we should continue to outlaw the sale of recreational-use marijuana to children and adolescents. Even the states that permit recreational marijuana use under state law draw the line between adults and minors. Unfortunately, some companies pay only lip service to that line. The ability to develop products that closely resemble cookies, brownies, candies, and other substances that are attractive to children and adolescents — albeit, for different reasons — poses the risk that minors — some accidentally, some intentionally — will consume marijuana edibles found around the home or elsewhere. Any use of marijuana by children and long-term use of marijuana by adolescents poses health risks avoidable through federal prohibition or regulation of edibles.To avoid the danger to their health and safety, the Justice Department and the FDA should take steps to prevent adulterated and mislabeled edibles from harming the public. Even if the Justice Department decides not to challenge the state medical or recreational use programs, the FDA should consider treating such edibles as adulterated foods under the FDCA — taking whatever steps are available to prevent the sale of any such products altogether — or to allow sales to go forward only under strictly regulated conditions. Doing so would help to reduce the danger that edibles pose to the health and safety of children and adolescents without materially interfering in state decisions on how to regulate the distribution of medical-use marijuana or the recreational use of that drug by adults