The Nickel Report

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).

The Service published a proposal to delist the BCV in December 2016. 81 Fed. Reg. 90,762 (Dec. 15, 2016). That proposal created some uncertainty regarding what project developers and operators should do to ensure long-term compliance with federal regulations and agency guidance. The final rule resolves that uncertainty at least with respect to the ESA, which no longer protects BCV from take.

The delisting decision will shift focus from the ESA to the Migratory Bird Treaty Act (MBTA). The rule emphasizes that the ESA delisting does not alter the BCV’s status as a protected species under the MBTA.

The implications of MBTA protection have been subject to some question in recent years. As noted in this space, on December 22, 2017, the Solicitor’s Office for the U.S. Department of the Interior (DOI), of which the Service is a part, issued a legal opinion concluding 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. This opinion replaced an opinion issued in January 2017, under the prior administration, that reached the opposite conclusion. The practical effect of the December 2017 opinion is that, at least for the duration of the current administration, the Service is not likely to pursue enforcement action for incidental take under the MBTA. However, interpretation of the MBTA’s take prohibition is subject to change again under future administrations. In addition, the federal court decisions interpreting the MBTA are split on the issue of whether the MBTA prohibits incidental take. And the two federal circuits in which BCV breeding habitat is located take opposing views. The Fifth Circuit, which includes Texas, held in 2015 that the MBTA does not prohibit incidental take. See United States v. CITGO Petroleum Corp., 801 F.3d 477, 488-89 (5th Cir. 2015). By contrast, the Tenth Circuit, which covers Oklahoma, is among the circuits that have held that the MBTA’s take prohibition does prohibit incidental take. In fact, the Tenth Circuit has held that the MBTA creates strict liability, prohibiting all take of migratory birds, regardless of the activity. See United States v. Apollo Energies, 611 F.3d 679, 686 (10th Cir. 2010).

Thus, while the delisting decision substantially reduces the environmental regulatory risk for project sites where BCV are present (including the risk of citizen suit enforcement and the higher enforcement priority for violations of the ESA), project owners and operators still must give due attention to MTBA compliance.