Bird Law...or Something Like It

The legal expert Charlie Kelly once said, "I know a lot about the law and various other lawyerings. I'm well educated. Well versed. I know that situations like this- real estate wise- they're very complex." (Author's note: Charlie Kelly, of the lovely comedy series "Always Sunny in Philadelphia," is not an expert in anything except Nightcrawlers.) However, Charlie had a point about Bird Law. "Bird law in this country is not governed by reason." 

The closest thing we have to Bird Law here in the real world is the former U.S. Army Corps of Engineers "Migratory Bird Rule." At one time, the Corps adopted this so-called "Migratory Bird Rule," which asserted that the Corps had jurisdiction over any water, even over isolated wetlands, "which are or would be used as habitat by... migratory birds that cross state lines." This rule was overturned by the U.S. Supreme Court in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). The Supreme Court held that neither the Corps nor the EPA can exert jurisdiction over isolated wetlands based solely on the presence of migratory birds. Thanks to SWANCC, Bird Law in the U.S. is one step closer to being governed by reason. The EPA and the Corps do not have jurisdiction over isolated wetlands just because a migratory bird takes a rest there. See Rapanos and my earlier post on the Clean Water Act here for more information about where the EPA and the Corps do have jurisdiction.