The Nickel Report

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).

Dispute over the meaning of “take” and current legal challenges

The MBTA, a criminal statute enacted in 1918, is one of the oldest wildlife protection laws in the US 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. Responsibility for enforcing the MBTA falls on USFWS, an agency within the US Department of Interior (DOI).

As we have explained in previous articles on the subject (De-Criminalizing the Inevitable: Some Hope for Rationalizing the MBTA?; The Other Shoe Drops on the MBTA; US Fish & Wildlife Service To Seek Dismissal of Suits Challenging MBTA Legal Opinion), uncertainty has prevailed for years regarding the scope of the take prohibition under the MBTA.

While the plain words of the statute seem to focus on prohibiting actions specifically directed at migratory birds (as by a hunter), USFWS took the position for many years that the Act applied to unintended takes that occurred “incidental” to an otherwise lawful activity, such as those carried out by industrial enterprises, including waste discharges into storage ponds, aerial pesticide applications, logging, operation of oil production tanks and reserve pits and operation of wind and solar energy projects. Since there is no regulatory program under the MBTA to authorize incidental take of protected birds, anyone engaging in an activity likely to result in a take, however unintentional, has faced the risk of criminal prosecution, subject to the discretion of the Service to seek enforcement.

The federal courts of appeal have split on the meaning of “take,” with opinions from the Fifth and Eighth Circuits holding that the MBTA does not prohibit incidental take and opinions from the Second and Tenth Circuits holding that it does.

DOI itself has taken differing positions, depending on which political party occupies the White House. In January 2017, the Solicitor’s Office of DOI, under the outgoing Obama administration, issued a legal opinion concluding that the MBTA prohibited incidental take of migratory birds. Within less than a month following President Trump’s inauguration, DOI withdrew the Obama-era opinion and replaced it with a new opinion, issued in December 2017, presenting the opposite conclusion. This new, still-current opinion concludes that the MBTA’s 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 take that is incidental to an otherwise lawful actions that results—even directly and foreseeably—in the death of a protected bird. The Service’s enforcement policy changed course as a result of the new legal opinion, with a guidance memorandum issued in April 2018 clarifying that “the MBTA’s prohibitions on take apply when the purpose of an action is to take migratory birds, their eggs, or their nests,” and that “[c]onversely, the take of birds, eggs or nests occurring as a result of an activity, the purpose of which is not to take birds, eggs or nests, is not prohibited under the MBTA.” Likewise, USFWS published an announcement in the Federal Register in May 2018, stating that, based on the December 2017 legal opinion, “no further action will be taken in regard to [a] notice of intent [published in 2015 under the Obama administration] to prepare a [programmatic environmental impact statement] . . . pursuant to the National Environmental Policy Act to evaluate the potential environmental impacts of a proposed rule to authorize incidental take of migratory birds under the [MBTA].” 83 Fed. Reg. 24080 (May 24, 2018).

Despite efforts by the Trump administration to clarify the scope of “take” under the MBTA, substantial uncertainty remains. In May 2018, the National Audubon Society and the Natural Resources Defense Council each filed lawsuits challenging DOI’s December 2017 legal opinion in the US District Court for the Southern District of New York. Approximately three months later, a third lawsuit was filed in the same court by eight states, including New York, California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico and Oregon. State of New York et al. v. U.S. Department of the Interior et al., Case No. 18-CV-8084 (S.D.N.Y.). All three lawsuits seek to vacate the legal opinion on the grounds that the Agency’s actions were arbitrary and capricious and exceeded its statutory authority by reversing its longstanding enforcement policy without affording notice and the opportunity for public comment. These legal challenges remain pending before the court. In July 2019, the court issued an order consolidating the cases, granting DOI’s motion to dismiss as to one claim (that the legal opinion was issued without notice and comment in violation of section 553 of the Administrative Procedure Act), and denying the motion as to all other claims. Plaintiffs filed motions for summary judgment on January 17, 2020. Notably, on that same date, eleven former DOI and USFWS officials submitted an unopposed motion for leave to file an amicus curiae brief in support of the plaintiffs’ motions for summary judgment. These officials include high-level administrators who served as both Senate-confirmed political appointees and senior career civil servants under both Republican and Democratic administrations. Briefing in the consolidated cases is scheduled to conclude on May 22, 2020.

Proposed Codification of the DOI Solicitor’s Opinion

In the face of this litigation, USFWS is pressing forward to formalize DOI’s current legal opinion in the form of an enforceable regulation. On February 3, 2020, the Service published a proposed rule under the MBTA to adopt a regulation specifically excluding incidental take from criminal liability under the MBTA. 85 Fed. Reg. 5915 (Feb. 3, 2020). The proposal would add a new provision to the regulation, stating in relevant part that “[i]njury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.” The rationale presented in the preamble for the proposed rule relies heavily on caselaw supporting DOI’s current legal opinion as well as assertions that the ambiguity in the statutory terms of “take” and “kill” gives rise to constitutional due process violations for lack of fair notice of potential liability. The proposal also cites statistics showing that the top three causes of bird fatalities in the US are attributed to predation by cats (2.4 billion birds per year) and collisions with building glass and vehicles (599 million and 214.5 million birds per year, respectively). “Reading the MBTA to capture incidental takings,” the proposal says, “could potentially transform average Americans into criminals,” an “absurd result[]” not intended by Congress. The proposed rule focuses in particular on potential impacts to commercial entities that would face criminal prosecution under a strict liability policy while engaging in “common” and “necessary” activities that benefit the public. Of note are the statistics it cites for annual bird fatalities caused by industrial activities, which represent a small fraction of those caused by the aforementioned, top-three, non-industrial threats. According to the proposed rule, collisions with wind turbines result in the death of an estimated 234,000 birds per year, compared to the nearly 815 million fatalities caused by collisions with building glass and vehicles combined. The public comment period for the proposed rule ends on March 19, 2020.

Will Congress Intervene?

Meanwhile, a bill is floating in Congress that would reverse the December 2017 DOI Solicitor’s opinion through legislative amendment to the MBTA. On January 8, 2020, the House Natural Resources Committee introduced H.R. 5552, which would add “incidental take” to the list of prohibited actions under section 2(a) of the MBTA and specify that “[i]t shall be a violation of [the MBTA] for any person to incidentally take a migratory bird as a result of commercial activity.” “Incidental take” would be defined as “the killing or taking of migratory birds that directly and foreseeably results from, but is not the purpose of, a commercial activity,” and “Commercial activity” would be defined to include both “the conduct of any aspect of a business, concession, or service in order to provide goods or services to any person for compensation, including manufacturing, distributing, transporting, and marketing goods and services” and “activities of federal, state, or local governments related to the management or administration of government property or programs.” (The proposal would not place liability for incidental take on private individuals not engaged in commercial activities.)

H.R. 5552 also would provide a safe harbor for regulated entities to avoid liability by offering coverage under a general permit that authorizes the incidental take of migratory birds, provided that certain mitigation measures and best management practices are implemented to avoid or minimize impacts to avian species. H.R. 5222 would explicitly direct USFWS to promulgate a program that creates general permits for specific industries deemed to “have broadly similar levels of incidental take and for which generally-applicable best management practices or technologies exist that can effectively avoid or minimize such impacts.” The bill identifies the categories of highest priority as including oil, gas and wastewater disposal pits; communication towers; electrical transmission and distribution lines; methane and other gas burner pipes; and wind power generation facilities. The bill would require USFWS to issue general permits covering these industry categories within five years of enactment and would require it to issue a general permit covering solar powered generation facilities within eight years of enactment. In the meantime, presumably, persons engaged in commercial activities would remain at risk of criminal prosecution at the discretion of the USFWS. The bill also contemplates imposition of mitigation fees on permitted entities to be used by various conservation programs to address impacts that cannot be avoided.

Sponsored largely by Democratic representatives, H.R. 5552 likely has little prospect of passage in the current Congress. Whether similar legislation may re-emerge in the next Congress likely depends on the outcome of the election in November.

What next?

For now, the regulated public is not at risk of prosecution under the MBTA for incidental take of protected birds, as reinforced by the Service’s proposed regulation. However, the long term fate of incidental take under the MBTA remains subject to both judicial intervention and future political developments.