Migratory Bird Treaty Act - Harvard Law School

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Quick Take

Under President Biden, the Department of Interior (DOI) and Fish and Wildlife Service (FWS) planned to reinstate protections for migratory birds by withdrawing Trump-era guidance and regulations that narrowed the scope of the Migratory Bird Treaty Act (MBTA) regulations. However, on Dec. 1, 2023, FWS withdrew its proposed rule clarifying MBTA prohibitions against foreseeable incidential takings from review by the White House Office of Information and Regulatory Affairs (OIRA).

Why it Matters

Following a treaty between the US and Great Britain to protect migratory birds, Congress enacted the 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. 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 DOI issued a memorandum 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 the withdrawal as arbitrary and capricious. NRDC v. Interior, 1:18-cv-04596 (S.D.N.Y.). Also under the Trump administration, the 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 7th 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 were effective on December 3, 2021.

Timeline of Events

Obama administration

Jan. 10, 2017 The Office of the Solicitor for the DOI 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

Dec. 22, 2017 The Office of the Solicitor for the DOI 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, and 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 DOI officials, including two former Deputy Secretaries of the DOI and five former Directors of the FWS, sends a letter to DOI 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 FWS issues 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 DOI’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 the DOI 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 denies the federal government’s request to dismiss challenges to the guidance memo brought by environmental groups and states. The DOI had argued that the cases should be dismissed for lack of standing or failure to state a claim. The judge does dismiss the plaintiffs’ claim that the guidance should have gone through notice-and-comment procedures, agreeing with defendants that interpretive rules are not required to do so. All other claims survive the motion to dismiss. The judge also consolidates the two cases. Case No. 1:18-cv-04601, 1:18-cv-8084, 1:18-cv-4596 S.D.N.Y.

Feb. 3, 2020 The US FWS proposes new regulations consistent with its interpretation of the MBTA, limiting its scope.

June 5, 2020 The FWS 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 strikes down the Interior Solicitor’s memorandum M-37050, which had re-interpreted the MBTA to no longer prohibit the incidental take of migratory birds. The judge vacates the Solicitor’s opinion and the April 2018 guidance from the US FWS that relied on it, finding it arbitrary and capricious and in violation of the Administrative Procedure Act. NRDC v. Interior, 1:18-cv-04596 (S.D.N.Y.). On Oct. 9, 2020, the DOI files a notice to appeal the August 11th decision. NRDC v. Interior, et al., No. 20-03491 (2d Cir.).

Nov. 27, 2020 The FWS releases its final Environmental Impact Statement for the regulation.

Jan. 7, 2021 The FWS 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 FWS’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

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

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

Feb. 25, 2021 The DOI withdraws its Second Circuit appeal of the Aug. 11, 2020 decision vacating the Solicitor’s Opinion interpreting the MBTA.

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. On July 20, 2021 FWS releases for comment two economic analyses prepared to support the revocation of the Jan. 7, 2021 MBTA rule.

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, to be effective on Dec. 3, 2021. The same day, 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. Finally, FWS releases Director’s Order No. 225, which outlines its interpretation of the MBTA and its expectations for enforcement. The order clarifies that 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.

Dec. 1, 2023 FWS withdrew its proposed rule revising its MBTA regulations from review by the White House Office of Information and Regulatory Affairs (OIRA), citing the need to review additional “technical comments.”