The Nickel Report

On February 12, 2024, the U.S. Fish and Wildlife Service (USFWS or the Service) published a final rule revising the regulations governing the issuance of eagle take permits (ETPs) under the Bald and Golden Eagle Protection Act.  89 Fed. Reg. 9920 (Feb. 12, 2024).  The rule revises certain requirements for individual permits – referred to as “specific” permits in the rule – and creates a new program of general permits covering certain activities.  Activities for which general permits will be available include (i) incidental take of bald and golden eagles associated with qualifying wind energy projects, (ii) incidental take of bald and golden eagles associated with power line infrastructure, (iii) certain activities that may cause bald eagle disturbance take, and (iv) certain categories of bald eagle nest take.  We previously reported on the proposed version of the rule, which was published in September 2022.

On September 30, the US Fish and Wildlife Service (USFWS or Service) published proposed rule that would revise the regulations governing the issuance of eagle take permits (ETPs) under the Bald and Golden Eagle Protection Act.  87 Fed. Reg. 59,598 (September 30, 2022). In the preamble to the proposed rule, the Service acknowledges that its current ETP regulatory process, first established in 2009 and revised in 2016, is not working as intended.  In particular, the Service notes that “[w]hile there are more than 1,000 wind-energy projects on the landscape, the Service has received fewer than 100 applications from those projects and has currently issued only 26 permits since the promulgation of the 2016 Eagle Rule.”  87 Fed. Reg. at 59,602.

The US Fish and Wildlife Service’s (USFWS or the Service) revocation of the Trump administration’s Migratory Bird Treaty Act (MBTA) rule took effect last Friday, December 3.  On the same date, the public comment period closed on the Service’s Advanced Notice of Proposed Rulemaking (ANPR), in which USFWS announced its plan to issue a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take, and to propose a system of regulations to authorize the incidental take of migratory birds under certain conditions.

On October 4, 2021, the US Fish and Wildlife Service (FWS or the Service) published a final rule revoking its January 7, 2021, Migratory Bird Treaty Act (MBTA or Act) rule. 86 Fed. Reg. 54,642  (Oct. 4, 2021) (Rule or Revocation Rule). The January 7 rule was issued at the end of the Trump administration and established that the MBTA does not prohibit incidental (unintentional) take of migratory birds.  86 Fed. Reg. 1134 (Jan. 7, 2021). In the preamble to the Rule, which lists an effective date of December 3, 2021, the Service explained that “[t]he immediate effect of this final rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017.” 86 Fed. Reg. at 54,642.  On the same day it published the Revocation Rule, FWS also published an Advanced Notice of Proposed Rulemaking (ANPR), requesting public input that will be used to develop proposed regulations to authorize the incidental take of migratory birds under prescribed conditions, 86 Fed. Reg. 54,667 (Oct. 4, 2021), and issued a Director’s Order clarifying the Service’s current enforcement position.

On May 7, the US Fish and Wildlife Service (USFWS or Service) under the new Biden administration published a proposed rule to revoke a final rule issued during the final weeks of the Trump administration, 86 Fed. Reg. 1134 (Jan. 7, 2021) (January 7 rule), which excluded incidental take from the prohibition against take under the Migratory Bird Treaty Act (MBTA or Act). 86 Fed. Reg. 24,573 (May 7, 2021) (Proposed Rule). This proposal is the latest development in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA, as we have reported in previous articles. If USFWS revokes the January 7 rule as proposed, the regulated community will once again face uncertainty regarding its exposure to criminal enforcement under the MBTA for unintentional take of protected birds associated with a wide range of productive activities.  Notably this could include the operation of wind turbines, an activity that the current administration otherwise presumably wants to encourage as part of its effort to expand the use of renewable energy to address climate change.

On January 7, the US Fish and Wildlife Service (USFWS or Service) published a final rule providing that the scope of the prohibition of take under the Migratory Bird Treaty Act (MBTA or Act) applies “only to actions directed at migratory birds, their nests, or their eggs,” and does not prohibit incidental take (i.e., take that is not the purpose of an activity).  86 Fed. Reg. 1134 (January 7, 2021).  The rule, which lists an effective date of February 8, 2021, represents the latest in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA.  If it stands under the incoming administration, this rule will have important implications for the wind energy industry, among other sectors.

The U.S. Supreme Court ruled today in Atlantic Richfield Company v. Christian that private landowners at a Superfund site near Butte, Montana, can pursue state law claims in state court seeking “restoration damages” for cleanup actions that go beyond the EPA-selected remedial action. The Court also held, however, that these landowners are potentially responsible parties (PRPs) under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and, as a consequence, must obtain EPA approval of the restoration plans before they can be implemented. Chief Justice Roberts wrote the Court’s opinion, in which five other justices joined.  Justice Alito wrote a dissenting opinion declining to sign on to the majority’s conclusion “that state courts have jurisdiction [under state law] to entertain ‘challenges’ to EPA-approved CERCLA plans,” taking the position that it was unnecessary for the Court to address this question.  In a separate dissent, Justice Gorsuch, joined by Justice Thomas, disagreed with the conclusion that the landowners were “PRPs” who needed EPA’s approval to conduct more robust cleanup at their properties than otherwise required by EPA.

The Novel Coronavirus Disease (COVID-19) outbreak is affecting virtually every sector of society and the economy. The healthcare sector and government agencies are on the front lines of the response. Providing support to these critical response activities as well as striving to maintain the strength of the overall economy by continuing regular business operations is vitally important. The private sector has important roles to play. The purpose of this blog post is to briefly outline some practical and legal tools available to help provide both direct support and maintain broader economic activities while ensuring environmental protection and compliance with natural resource laws.

This blog post will be updated as new or relevant information becomes available.

All three branches of the federal government are currently considering the question of whether the Migratory Bird Treaty Act (MBTA) prohibits the take of protected birds that is incidental to some otherwise lawful activity. The latest development is a proposal by US Fish and Wildlife Service (USFWS or Service) to issue a regulation expressly defining the scope of the MBTA to exclude take “that results from, but is not the purpose of, an action (i.e., incidental taking or killing).” 85 Fed. Reg. 5915 (Feb. 3, 2020). This proposal is the latest effort by the USFWS to bring clarity and certainty to a question that has been the subject of dispute for years and is currently both the subject of pending lawsuits and proposed legislation before Congress. If adopted, the rule should bolster the current administration’s effort to defend its interpretation of the statute, but the question is likely to be litigated further, assuming Congress does not intervene (seemingly unlikely for now).

The controversy continues over the scope of the take prohibition under the Migratory Bird Treaty Act (MBTA). As we noted here, the Solicitor’s Office for the US Department of the Interior (DOI) issued an opinion in late 2017 concluding that the MBTA does not prohibit the incidental take of migratory birds. Although this conclusion was consistent with the holdings of at least two US Circuit Courts of Appeal, the Solicitor’s Opinion came under immediate fire from conservation groups and several former government officials. In May of this year, two environmental groups filed lawsuits in federal court challenging the Opinion. In a court filing earlier this month, the government stated its intention to move to dismiss these suits based on several threshold grounds, such as whether the Opinion is a final agency action subject to judicial review. These lawsuits inject fresh uncertainty into an area of the law that DOI sought to clarify.

On April 16, 2018, the U.S. Fish and Wildlife Service published a final rule removing the black-capped vireo (BCV) from the Federal List of Endangered and Threatened Wildlife. 83 Fed. Reg. 16,228. The BCV is a migratory songbird that breeds and nests in Texas, Oklahoma, and northern Mexico, and winters along Mexico’s Pacific coast. Its breeding habitat includes shrublands and open woodlands. The delisting decision is based on the Service’s determination “that the primary threats to the [BCV] have been reduced or managed to the point that the species has recovered.” The delisting will take effect on May 16, 2018. The Service will work with the States of Texas and Oklahoma to implement a 5-year post-delisting monitoring program in compliance with section 4(g)(1) of the Endangered Species Act (ESA).

As recently noted here, shortly after the Trump administration took office last year, the Solicitor’s Office for the U.S. Department of the Interior (DOI) withdrew a legal opinion it issued in the waning days of the Obama administration which concluded that the Migratory Bird Treaty Act (MBTA) prohibits incidental take of migratory birds, pending further review of the question.  The results of that further review were revealed on December 22, 2017, when the Solicitor’s Office issued a new opinion reaching the opposite conclusion.

Uncertainty has reigned for a number of years about the scope of the take prohibition under the Migratory Bird Treaty Act (MBTA). In the latest effort to address this problem, the House Committee on Natural Resources has attached an amendment to a pending energy bill that would clarify that the MBTA does not prohibit incidental take of protected birds.

The MBTA, a criminal statute enacted in 1918, is one of the oldest wildlife protection laws on the books and covers over 1,000 bird species, including approximately 90 percent of all birds occurring in North America and many common species. The MBTA makes it illegal for any person to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, … ship, … transport, … carry, … receive … at any time, or in any manner, any migratory bird, … or any part, nest, or egg of any such bird.” 16 U.S.C. § 703.

The Superfund program is much criticized for good reason on many grounds. It takes too long to investigate sites and decide on the appropriate cleanup. The costs for investigation and cleanup actions are excessive. The process is seemingly never-ending as contaminated sites languish on the National Priorities List for decades.

Streamlining the process is a worthwhile goal, but equally important would be reforms to promote remedy decisions that take account of the fact the resources are not unlimited. Money spent on cleanup is not available for another purpose. Unfortunately, because of its single-minded focus on often remote human health and ecological risks associated with exposures to chemical contaminants (usually based on highly conservative exposure assumptions), the Superfund program drives a lot of resources to cleanup that likely would be better allocated to another use.

You may well not have noticed when the US Fish and Wildlife Service (Service) issued a proposal back in September to list the Kenk’s amphipod (Stygobromus kenki) as an endangered species. 81 Fed. Reg. 67270 (September 30, 2016). Even the Center for Biological Diversity, which pushed for the listing, concedes that this small, eyeless, shrimp-like creature “may be one of the most uncharismatic species considered for protection under the [Endangered Species] Act.” This proposal is worthy of note, however, for at least a couple of reasons.