03/06/2018 - Regulatory Tracker

Migratory Bird Treaty Act

by EELP Staff

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Why it Matters

Following a treaty between the US and Great Britain to protect migratory birds, Congress enacted the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703-711, making 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 US. Bird deaths attributed to activities and structures such as oil pits and spills, high tension power lines, wind farms, and communication towers, are known as “incidental (or unintentional) takes.”

Toward the end of the Obama Administration, the Office of the Solicitor for the Department of Interior issued a Solicitor’s Opinion memorandum, M- 37041, establishing that “incidental takes were unauthorized taking or killings prohibited under the MBTA.” Although the Trump administration withdrew this opinion, the Southern District of New York struck down withdrawal finding it arbitrary and capricious, violating the Administrative Procedure Act. NRDC v. Interior, 1:18-cv-04596 (S.D.N.Y.).

Also under the Trump Administration, the Fish and Wildlife Service (FWS) finalized new regulations narrowing the scope of its regulations regarding the killing or injuring of birds to only intentional acts. Environmental groups filed a lawsuit challenging the rule on Jan. 19, 2021

Current Status

The Biden administration has taken steps to withdraw and revoke the actions by the Trump administration related to migratory birds. First, on March 8, 2021, the Principal Deputy Solicitor permanently withdrew the Trump-era Solicitor’s Opinion M-37050 “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take”. Second, on May 7, 2021, FWS proposed to revoke MBTA regulations, which would have the effect, once final, of prohibiting incidental take of migratory birds take and applying enforcement discretion on a case-by-case basis. Most recently, on October 4, 2021, FWS finalized its revocation of the Trump administration’s January 7 rule that limited the scope of the MBTA, released an advance notice of proposed rulemaking (ANPRM) requesting comment on potential alternatives for authorizing incidental take of migratory birds, and issued a Director’s Order clarifying its enforcement position. The final rule and Director’s Order are effective on December 3, 2021, and comments on the ANPRM are due December 3, 2021.

Timeline of Events

Obama administration
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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 Administration
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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.

Feb. 3, 2020 The US Fish and Wildlife Service proposes new regulations consistent with its interpretation of the MBTA, limiting its scope.

June 5, 2020 The Fish and Wildlife Service releases a draft environmental impact statement for its proposed regulations for public comment.

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 files a notice to appeal the August 11 decision. NRDC v. Interior, et al., No. 20-03491 (2d Cir.).

Oct. 14, 2020 Seventeen 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. 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.

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.).

Biden Administration
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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.” 

May 7, 2021 FWS 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. Comments were due by June 7, 2021.

July 20, 2021 FWS releases for comment two economic analyses prepared to support the revocation of the Jan. 7, 2021 MBTA rule. Comments are due by August 19, 2021.

Oct. 4, 2021 FWS publishes its final rule revoking the January 7, 2021 rule by the Trump administration that limited the scope of the MBTA. This action is effective on Dec. 3, 2021.

Oct. 4, 2021 FWS releases an Advance notice of proposed rulemaking (ANPRM) seeking information to codify FWS’s interpretation of the MBTA as prohibiting incidental take and to propose regulations to authorize incidental take under “prescribed conditions.” The FWS intends to prepare a draft environmental rule as part of this proposal in accordance with NEPA. Comments are due on Dec. 3, 2021.

Oct. 4, 2021 FWS releases Director’s Order No. 225, which outlines its interpretation of the MBTA and its expectations for enforcement. Specifically, the Order notes that it will focus enforcement on “activities that both foreseeably cause incidental take and where the proponent fails to implement known beneficial practices to avoid or minimize incidental take.” Thus, public- or private-sector entities that are acting consistent with beneficial practices to avoid and minimize incidental take would not be a priority for enforcement.