Responding To Migratory Bird Law Uncertainty Under Biden

• Published date: 03 November 2021
• Subject Matter: Environment, Government, Public Sector, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Government Contracts, Procurement & PPP, Renewables
• Law Firm: Milbank LLP
• Author: Mr Matthew Ahrens and Allison Sloto

As expected, on Oct. 4, the U.S. Fish and Wildlife Service published a final rule and issued a director's order formally revoking the rule thenPresident Donald Trump issued on Jan. 7 that had limited liability for incidental takes of migratory birds under the Migratory Bird Treaty Act, and affirmatively stating that the MBTA prohibits incidental take.

However, the FWS didn't stop there. On the same date, the FWS published an advance notice of proposed rulemaking, or ANPR, to consider the creation of a new MBTA incidental take permitting program.

Trump's Migratory Bird Rule Flies Away, Restoring Past Uncertainty

The applicability of the MBTA to incidental take remains uncertain given the conflict posed by past judicial and administrative activity.

The MBTA makes it unlawful to pursue, hunt, take, capture or kill any migratory bird, and protects virtually every North American bird species. Federal courts have long disagreed over whether the MBTA criminalizes incidental take of migratory birds.

Currently, there is a split among federal courts of appeal:

• The U.S. Courts of Appeals for the Fifth, Eight, and Ninth Circuits have more narrowly interpreted the MBTA in a similar manner to the Trump administration, each essentially holding that only intentional killing of birds constitutes a taking and that inadvertent bird deaths, such as from habitat destruction, are not a taking.¹
• On the other hand, the U.S. Courts of Appeals for the Second and Tenth Circuits have supported a broader view of the criminal enforcement provisions of the MBTA. The U.S. Court of Appeals for the Second Circuit upheld the conviction of a pesticide manufacturer for bird deaths as a take under the MBTA in 1977 in U.S. v. FMC Corp.,² and the U.S. Court of Appeals for the Tenth Circuit held that all intentional or unintentional bird killings constitute a strict liability misdemeanor crime in 2010 in U.S. v. Apollo Energies Inc.³

As a result, liability for incidental take under the MBTA may differ depending on the federal circuit in which the violation occurs.

Further, past presidential administrations have differed in interpretation with respect to the applicability of the MBTA to incidental take:

• During President Barack Obama's tenure, the U.S. Department of the Interior issued legal opinion number M-37041 on Jan. 10 2017, which interpreted the MBTA to prohibit incidental takes.
• On Dec. 22, 2017, Trump reversed course and withdrew M-37041 and the DOI issued legal opinion number M-37050, which interpreted the MBTA to prohibit only intentional, directed takes.
• M-37050 was struck down by the U.S. District Court for the Southern District of New York in an Aug. 11, 2020, decision. The DOI appealed. After President Joe Biden took office, the DOI filed a stipulation to dismiss the appeal on Feb. 25, and the deputy solicitor permanently withdrew M-37050 on March 8.
• In Trump's last days in office, the FWS published a...