By Geremy Holm

On November 27, 2020, the U.S. Fish and Wildlife Service (FWS or Service) published a final Environmental Impact Statement (EIS) analyzing a proposed rule change to the Migratory Bird Treaty Act (MBTA) that would significantly reduce potential liability under the statute, including for water agencies. Specifically, the proposed rule would adopt a regulation exempting activities that incidentally result in “take” of protected bird species from the scope of the MBTA’s prohibitions, meaning that the MBTA would only reach, and create potential civil or criminal liability for, actions designed to intentionally kill or harm migratory birds, their nests, or their eggs. [U.S. Department of the Interior Fish & Wildlife Serv., Regulations Governing Take of Migratory Birds: Final Environmental Impact Statement (November 2020).]

Background

The FWS is the federal agency delegated the primary responsibility for managing migratory birds consistent with four international migratory bird treaties (between the United States and Canada, Mexico, Japan, and Russia) and implementing the MBTA. The MBTA was enacted in 1918 to help fulfill the United States’ obligations under the 1916 “Convention between the United States and Great Britain for the protection of Migratory Birds.” The goal of the MBTA was to stop the unregulated killing of migratory birds at the federal level.

On December 22, 2017, the Principal Deputy Solicitor of the Department of the Interior (Solicitor), exercising the authority of the Solicitor pursuant to Secretary’s Order 3345, issued a legal opinion, M-Opinion 37050, “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.” M-Opinion 37050 concluded that the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions intentionally or purposefully “taking” migratory birds, their nests or their eggs. In response to this opinion, several environmental groups took legal action in federal court, alleging that the proposed interpretation would severely rollback the ability of the federal government to prosecute industries for violations of the MBTA.

The FWS sought to adopt the Solicitor’s opinion, publishing a proposed rule codifying M-Opinion 37050 on February 3, 2020. Following the administrative process required by the National Environmental Policy Act (NEPA), the Service released a draft Environmental Impact Statement on June 5, 2020. After the issuance of the proposed rule and draft EIS, a U.S. District Court vacated M-Opinion 37050. See, Natural Resources Defense Council v. U.S. Department of the Interior, ___F.Supp.3d___, Case 18-cv-4596(S.D. N.Y. Aug. 11, 2020); see:https://www.biologicaldiversity.org/species/birds/pdfs/Migratory-Bird-Treaty-Act-Ruling.pdf)

In response to the court’s vacatur of the M-Opinion, the FWS continued to proceed through the NEPA process. On November 27, 2020, the Service published the final EIS, providing responses to comments received throughout the process. The final EIS is available for public review for 30 days, after which the Service will issue a Record of Decision (ROD). See: https://www.fws.gov/regulations/mbta/.

After the ROD is issued, the final step of the rulemaking process will be the publication of a final rule.

The Migratory Bird Treaty Act and ‘Takings’

The MBTA makes it unlawful to, among other things, take individuals of many bird species found in the United States, unless that taking is authorized by a regulation promulgated under 16 U.S.C.§ 704. 16 U.S.C. § 703. “Take” is defined in the Service’s general wildlife regulations as “to pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to hunt, shoot, wound, kill, trap, capture, or collect.” 50 C.F.R § 10.12. Prior to M-Opinion 37050, § 703 of the MBTA was interpreted as a strict liability provision, meaning that no criminal intent is required for a violation to have taken place, any act that takes or kills a bird must be covered as long as the act results in the death of a bird. M-Opinion 37041 at 2 (January 10, 2017). Instead, the FWS relied on enforcement discretion to determine when to pursue alleged incidental take violations. Id. at 12.

However, federal courts have adopted different views on whether the MBTA prohibits the “incidental take” of migratory birds. Some Courts of Appeal and District Courts have held that the MBTA criminalizes certain activities that incidentally take migratory birds, generally with some form of limiting construction, while others have indicated that it does not. For instance, the FWS did not enforce incidental take of migratory birds within the jurisdiction of the Fifth Circuit Court of Appeals because that court held the MBTA does not prohibit incidental take. See: United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015).

The Fish and Wildlife Service’s Proposed Rule

By its most recent action, the Service proposes to develop a regulation in 50 C.F.R part 10 that defines the scope of the MBTA to exclude incidental take, claiming that the adoption of the regulation is necessary to provide legal certainty for the public regarding what actions are prohibited under the MBTA.

In the proposed rule, the FWS seeks to interpret the MBTA to prohibit only actions directed at migratory birds, their nests, or their eggs, clarifying that incidental take is not prohibited. With the proposed rule, the Service proposes to adopt a regulation defining the scope of the MBTA’s prohibitions to reach only activities expressly directed at killing migratory birds, their nests, or their eggs. In other words, take of a migratory bird, its nest, or eggs that is incidental to another lawful activity does not violate the MBTA, and the MBTA’s criminal provisions do not apply to those activities. Only deliberate acts intended to take a migratory bird are prohibited under the MBTA. As a result, this interpretation would significantly reduce the activities that would result in liability under the MBTA, including activities undertaken by water agencies that may inadvertently lead to take of migratory birds.

Conclusion and Implications

The Record of Decision for the proposed rule is due to be issued at the end of December, after which the final rule will be published. Given the controversy surrounding this issue and previous litigation attempts, it remains to be seen if there will be any last-minute legal challenges. Ultimately, the proposed rule will significantly change current enforcement of the MBTA. However, with a Biden administration coming to office in January 2021, it is possible that these changes to the MBTA may be reversed.