The Nickel Report

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.

For some time, the US Fish and Wildlife Service (Service) has taken the position that this provision applies to take incidental to an otherwise lawful activity and not just to purposeful takes (as by a hunter). This state of affairs has posed a quandary for a wide range of industries and commercial enterprises that engage in socially useful activities that unavoidably kill birds–most notably the generation of electric power from wind turbines. There is no regulatory program under the MBTA to authorize incidental take of protected birds. As a result, anyone engaging in an activity that results in a take, however unintentionally, faces the risk of criminal prosecution, mitigated only by the hope that the Service will exercise its enforcement discretion in a reasonable and even-handed manner. For wind farms, the Service has issued detailed guidelines defining the various “voluntary” actions that operators must take to assess and then mitigate the risk of impacts to protected birds in order to qualify for favorable enforcement discretion. These actions can be time-consuming, costly and ultimately provide no safe harbor against enforcement for the take of migratory birds that inevitably results from the operation of any wind farm. In recent years, the Service has filed enforcement actions under the MBTA against wind farm operators for the take of golden eagles and other migratory birds killed by collisions with turbine blades, resulting in plea agreements calling for fines and payments to conservation programs totaling several million dollars. Notably, the operators of at least two of the facilities involved had taken steps specified in USFWS guidelines to avoid impacts to birds, but their efforts were deemed inadequate after the fact by the Service.

The federal courts have provided some relief but only in certain areas of the country. The Fifth and Eighth Circuits have held that the MBTA does not prohibit incidental take, while the Second and Tenth Circuits have held that it does. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015); United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010); Newton County Wildlife Ass’n v. U.S. Dep’t of Agriculture, 113 F.3d 110, 115 (8th Cir 1997); United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978). This circuit split would appear to present an opportunity for Supreme Court review, but no such case appears to be on the horizon.

Recent efforts by the executive branch to address the scope of the MBTA’s take prohibition have yielded little clarity. In January 2017, the Solicitor’s Office for the US Department of the Interior (of which the USFWS is a part) issued a legal opinion concluding that the MBTA prohibits incidental take of migratory birds. However, on February 6, 2017, shortly after President Trump’s inauguration, the same office issued an order that suspended and temporarily withdrew the January opinion (along with several other Obama-era opinions) “to enable agency officials appointed or designated by the President . . . to review the opinions and the underlying regulations [and] decisions to which [it] appl[ies].” The Department’s review of the issue is ongoing.

Perhaps a legislative fix is the only reliable solution to this problem. Of course, attaching an amendment to a pending bill is one thing; getting that amendment enacted is quite another. In the meantime, the only compliance option for the regulated community (at least within the Second and Tenth Circuits) remains trying to stay in the good graces of the Service.