June 13, 2021

Volume XI, Number 164

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Department of the Interior Seeks to Withdraw Migratory Bird Treaty Act Liability Rule

In a proposed rule published May 7, 2021, the Biden Administration seeks to withdraw the Trump Administration’s Migratory Bird Treaty Act (MBTA) liability rule. The MBTA liability rule was published as a final rule on January 7, 2021, and provided the first regulatory definition of the scope of liability for take of migratory birds under the MBTA. Adopting one side of a court split, that rule interpreted the MBTA’s prohibitions as applying only to actions that are “directed” at migratory birds, and not to actions that “incidentally take” them.  Comments can be provided on the proposal to withdraw the MBTA rule until June 7, 2021. 

The Biden Administration delayed the effective date of the rule to March 8, 2021, and solicited additional public comments on whether the rule should be amended, rescinded, further delayed, or allowed to go into effect. On March 8, 2021, the Department of the Interior withdrew the 2017 legal opinion which preceded and formed the basis of the rule and had since been struck down in federal district court. In withdrawing the legal opinion, Interior stated that it was not consistent with its long-standing interpretation of the MBTA, signaling that it would likely move to withdraw the rule itself next. 

The current proposed rule, rather than further extending the MBTA rule’s effective date, provides that “the most transparent and efficient path forward is instead to immediately propose to revoke the January 7 rule.” The proposed rule states that the MBTA liability rule “does not reflect the best reading of the MBTA’s text, purpose, and history.” 

Given the sequence of developments, it is likely that the Biden Administration will finalize the withdrawal of the MBTA rule. If this occurs, Interior will once again interpret the MBTA as prohibiting incidental take but will apply enforcement “discretion.” The Biden Administration could also pursue policies that would provide greater clarity to industry, such as the proposal considered by the Obama Administration to develop an incidental take permitting program for the MBTA. Final withdrawal of the MBTA rule could also trigger renewed litigation, possibly in a forum that agrees with the legal interpretation in the withdrawn MBTA rule.

Industry and project proponents undertaking activities potentially affecting migratory birds should closely monitor the shifting liability rules for migratory birds and ensure that the administrative record reflects their views before the withdrawal becomes final. 

 

© 2021 Beveridge & Diamond PC National Law Review, Volume XI, Number 130
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James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC
Principal

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

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Alexander Horning Litigation Attorney Beveridge & Diamond Washington, DC
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Alex helps clients solve product and project development problems.

His regulatory, compliance, and litigation practice involves product stewardship, reverse logistics, hazardous, medical, and solid waste, Federal Insecticide, Fungicide, and Rodenticide Act, Endangered Species Act, and National Environmental Policy Act issues. Alex works with clients in the pharmaceutical and medical device, pesticides, and energy industries and has extensive experience counseling nationwide coalitions addressing industry challenges.

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W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC
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Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and...

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Casey T. Clausen Business Attorney Beveridge & Diamond Seattle, WA
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Casey is committed to providing legal services that meet his clients’ business goals.

He has a genuine interest in learning about his clients’ operations and is passionate about working in an area of the law that involves a range of industries, complex scientific and technical matters, and delivering solutions that address real-world business concerns.

Casey joined Beveridge & Diamond following tenures as a Law Clerk for United States District Judge Lawrence E. Kahn and U.S. Magistrate Judge Daniel J. Stewart in the U.S. District Court for the Northern District of New...

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