03/06/2018 - Regulatory Tracker

Migratory Bird Treaty Act

by EELP Staff

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Why it Matters

The Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703-711, makes it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry, or cause to be carried by any means whatever, receive for shipment, transportation or carriage, or export, at any time, or in any manner, any migratory bird, . . . or any part, nest, or egg of any such bird” unless permitted by regulation. (16 U.S.C. 703)

This prohibition covers most bird species found in the United States. These protected bird species face many dangers in the form of long-line fishing, oil pits and spills, high-tension power lines, communications towers, and other large infrastructure. Bird deaths attributed to activities and structures like these are known as “incidental (or unintentional) takes.” Enforcement of the MBTA has generally included such “incidental takes” and so served to limit them by incentivizing companies to develop and implement best practices and technologies to safeguard protected birds.

Many more birds are killed by incidental takes than direct takes. Excluding incidental takes from the MBTA removes the incentive for companies and government agencies to protect birds.

Current Status

The Trump administration, in Department of the Interior’s Solicitor’s Opinion M- 37050, re-interpreted the MBTA to prohibit prosecution for incidental takes of migratory birds, permanently withdrawing the Obama administration’s Solicitor’s Opinion M-37041 affirming long-standing agency interpretation to the contrary. The US FWS issued guidance implementing the new Solicitor’s Opinion and proposed new regulations based on the revised interpretation. An August 2020 federal district court decision vacated Opinion M-37050, reinstating the prior state of the law that allowed for enforcement of incidental takes under the MBTA. Interior appealed that decision on Oct. 9, 2020.

Despite the federal court decision vacating the Solicitor’s Opinion, the Fish and Wildlife service moved forward with finalizing new regulations narrowing the scope of its regulations regarding the killing or injuring of birds to only intentional acts. Interior published its final rule on Jan. 7, 2021, determining that the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing migratory birds or attempting to do so do not apply to indirect actions. Environmental groups filed a lawsuit challenging the rule on Jan. 19, 2021.

On Feb. 9, 2021 The Fish and Wildlife Service delayed the Jan. 7th rule’s effective date until March 8, 2021 and requested additional public comment on the rule. It also withdrew its appeal to the Second Circuit of the vacatur of the solicitor’s opinion on Feb. 25, 2021. DOI’s Principal Deputy Solicitor Robert Anderson permanently withdrew the Trump-era Solicitor’s Opinion M-37050 “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take” on March 8, 2021. On May 7, 2021 USFWS proposed to revoke the Jan. 7, 2021 revisions to the MBTA regulations in order to restore the prohibition of incidental take of migratory birds

History

1918 Following a treaty between the US and Great Britain to protect migratory birds, Congress passes the Migratory Bird Treaty Act. The MBTA gives authority and responsibility to the US Fish and Wildlife Service to enforce the act and protect birds listed in the MBTA. Since being delegated authority to enforce the MBTA, the US Fish and Wildlife Service has long recognized incidental takes as part of the prohibition on unauthorized taking of migratory birds.

Jan. 10, 2017 The Office of the Solicitor for the Department of Interior issues a Solicitor’s Opinion memorandum, M- 37041. Opinion M-37041 establishes that “incidental takes were unauthorized taking or killings prohibited under the MBTA.”

Trump Era

Dec. 22, 2017 The Office of the Solicitor for the Department of Interior issues a Solicitor’s Opinion memorandum, M- 37050, permanently withdrawing Opinion M-37041. The Trump administration’s interpretation finds that the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing apply only to affirmative actions that intend to take or kill migratory birds, their nests, or their eggs.

Jan. 10, 2018 A bi-partisan group of former Department of Interior officials, including  two former Deputy Secretaries of the Interior and five former Directors of the Fish and Wildlife Service, sends a letter to Interior Secretary Ryan Zinke requesting that the Department suspend the new interpretation of the MBTA and convene a bipartisan group of experts to consider the issue.

April 11, 2018 The Principal Deputy Director of the Fish and Wildlife Service issued guidance on implementing the Solicitor of the Interior’s Opinion M-37050.

May 24, 2018 Two sets of environmental groups file suit in the US District Court for the Southern District of New York challenging Interior’s December 2017 Solicitor’s Opinion. The National Audubon Society, American Bird Conservancy, Center for Biological Diversity, and Defenders of Wildlife argues the opinion was “unlawful and arbitrary and capricious.” National Audubon Society v. Interior, et al., No. 1:18-cv-04601 (S.D.N.Y.). The Natural Resources Defense Council and National Wildlife Federation argues it “misconstrues the act” and is thus unlawful. Both sets of plaintiffs ask the court to set aside the opinion and reinstate the Obama-era opinion. NRDC v. Interior, et al., No. 1:18-cv-04596 (S.D.N.Y.).

Sep. 6, 2018 Eight states, led by New York and California, sue Interior challenging its interpretation of the MBTA, which narrowed the scope of what is considered an “incidental take.” The states seek a declaration that the interpretation was unlawful because it “contradicts the plain meaning, structure, and intent” of the statute and “contravenes” the purpose of the act.

July 31, 2019 A federal district judge denied the federal government’s request to dismiss challenges to the guidance memo brought by environmental groups and states. The Department of Interior had argued that the cases should be dismissed for lack of standing or failure to state a claim. The judge did dismiss one of plaintiffs’ claims, the claim that the guidance should have gone through notice-and-comment procedures. The court agreed with defendants that interpretive rules are not required to do so. All other claims survived the motion to dismiss. The judge also consolidated the cases. Case No. 1:18-cv-04601, 1:18-cv-8084, 1:18-cv-4596 S.D.N.Y.

Jan. 30, 2020 The Department of the Interior announced that the Fish and Wildlife Service will soon release a proposed regulation reflecting the agency’s recent re-interpretation of the MBTA that finds it does not allow for enforcement of incidental takes of migratory birds, substantially reducing the scope of the act.

Feb. 3, 2020 The US Fish and Wildlife Service proposed new regulations to memorialize the department’s revised interpretation of the MBTA, limiting its scope. The public comment period for this rule runs through March 19, 2020.

June 5, 2020 The Fish and Wildlife Service releases a draft environmental impact statement for its proposed regulations for public comment. The public comment period for the EIS ends July 20, 2020.

August 11, 2020 With the memorable opening line that “[i]t is not only a sin to kill a mockingbird, it is also a crime,” federal district court Judge Caproni in the Southern District of New York struck down the Interior Solicitor’s memorandum re-interpreting the MBTA to no longer prohibit the incidental take of migratory birds. The judge vacated the Solicitor’s opinion and the April 2018 guidance from the US FWS that relied on it, finding it arbitrary and capricious, violating the Administrative Procedure Act. NRDC v. Interior, 1:18-cv-04596 (S.D.N.Y.).

Oct. 9, 2020 The Department of Interior filed a widely anticipated notice to appeal the August 11 decision. NRDC v. Interior, et al., No. 20-03491 (2d Cir.).

Oct. 14, 2020 17 Democratic senators write a letter to Interior Secretary David Bernhardt urging the Department of Interior to withdraw the proposed rulemaking codifying its re-interpretation of the MBTA.

Nov 9, 2020 The Fish and Wildlife Service submits its final regulation to the White House Office of Management and Budget for review before publication in the Federal Register. The new regulation narrows the application of the MBTA regulations so that they apply only to intentional injuring or killing of birds. 

Nov 27, 2020 The Fish and Wildlife Service releases its final Environmental Impact Statement for the regulation.

Jan. 7, 2021 Fish and Wildlife Service publishes its final rule determining that the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing migratory birds or attempting to do so do not apply to indirect actions. The agency finalizes this rule despite a federal district court striking the Interior Solicitor’s memorandum interpreting the MBTA to not protect migratory birds from incidental take.

Jan. 19, 2021 Environmental groups file a lawsuit challenging the Fish and Wildlife Service’s Jan. 7th final rule. National Audubon Society, et al. v. Fish and Wildlife Service, No.1:21-cv-00448 (S.D.N.Y.).

Early Biden Actions

Jan. 25, 2021 The Department of the Interior told the Justice Department that it intends to review the MBTA regulation.

Jan. 27, 2021 The Department of the Interior asks the Second Circuit to hold the case appealing the vacatur of the solicitor’s opinion on the scope of the Migratory Bird Treaty Act in abeyance and extend the time for the government to file its opening brief in the appeal. NRDC v. Interior, et al., No. 20-03491 (2d Cir.).

Feb. 2, 2021 The Second Circuit extends the deadline for the government to file its opening brief. NRDC v. Interior, et al., No. 20-03491 (2d Cir.).

Feb. 9, 2021 The Fish and Wildlife Service delays the Jan. 7th rule’s effective date until March 8, 2021 and requests additional public comment on the rule.

Feb. 25, 2021 The Department of the Interior withdraws its Second Circuit appeal of the Aug. 11, 2020 decision vacating the Solicitor’s Opinion interpreting the Migratory Bird Treaty Act.

March 8, 2021 DOI’s Principal Deputy Solicitor Robert Anderson permanently withdraws the Trump-era Solicitor’s Opinion M-37050 “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.” This withdraws the legal predicate for the Fish and Wildlife Service’s rule.

May 7, 2021 USFWS publishes a proposal to revoke the Jan. 7, 2021 revisions to the MBTA regulations in order to restore the prohibition of incidental take of migratory birds.