The Nickel Report

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.

The MBTA – a criminal statute enacted in 1918 – 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 statute protects over 1,000 bird species, including approximately 90 percent of all birds occurring in North America, and many common species. For many years, the U.S. Fish and Wildlife Service (USFWS), the agency within DOI which is responsible for enforcing the MBTA, had taken the position that this provision applies to takes incidental to an otherwise lawful activity, and not just to purposeful takes (as by a hunter).  This is the short-lived position expressed by the Solicitor’s Office early last year, before its opinion was withdrawn by the new administration.

Consistent with the holdings of the U.S. Courts of Appeal for the Fifth and Eighth Circuits, the new opinion from the Office of the Solicitor concludes that the MBTA take prohibition applies only to “direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control,” and does not apply to a take that is incidental to an otherwise lawful action that results -- even directly and foreseeably -- in the death of a protected bird.  The lengthy opinion reviews the historical circumstances and treaty negotiations leading to the enactment of the MBTA, the legislative history associated with its initial enactment and subsequent amendments, and the various court decisions interpreting the text.  In reaching the conclusion that the statute does not prohibit incidental take, the new opinion distinguishes between mens rea and actus rea, pointing out that even though a violation of the take prohibition requires only general intent (the principal basis for the conclusion reached in the prior opinion), the prohibition applies to only certain kinds of actions (i.e., those akin to hunting).

The practical effect of this new opinion is that, at least for the duration of  the present administration, the USFWS is not likely to be pursuing any MBTA enforcement actions for incidental take of protected birds.  At the same time, although not addressed by the opinion, the USFWS presumably will not be moving forward on a contemplated proposal for authorizing incidental take under the MBTA.  Because the MBTA, unlike many other environmental laws, does not provide for citizen enforcement, environmental groups will not be able to sue in place of USFWS enforcement actions (although they have attempted, so far without much success, to assert MBTA claims against federal permitting agencies through actions under the Administrative Procedure Act).  Persons undertaking any of the numerous lawful activities that inevitably result in incidental take of birds covered by the MBTA, such as the operation of a wind energy facility, thus can breathe a little easier.  However, they must still avoid taking species listed as threatened or endangered under the Endangered Species Act, and eagles, which are protected under the Bald and Golden Eagle Protection Act, except as authorized by a take permit.  Not surprisingly, a number of industry groups, including the Independent Petroleum Association of America and the National Ocean Industries Association, have praised the new opinion (although there has been no official comment yet from the American Wind Energy Association).

As the competing DOI legal interpretations demonstrate, the interpretation of the MBTA’s take prohibition is subject to change again under a future administration.  Thus, a legislative fix, such as that included in an energy bill recently reported out of the House Committee on Natural Resources, is the only long-term solution to the uncertainty that has surrounded this issue for many years.