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Government Proposes to Codify Limits on Migratory Bird Treaty Act Liability

The U.S. Fish and Wildlife Service (the “Service”) on February 3, 2020 issued a proposed rule that for the first time would supply a uniform regulatory definition of the scope of liability under the Migratory Bird Treaty Act (“MBTA”). The proposed rule would prohibit actions that are “directed” at migratory birds, as opposed to “incidental” take. The proposed rule will be available for public comment until March 19, 2020. Project proponents should consider preparing comments on the proposal.

The MBTA is a century-old statute that establishes criminal penalties for any act that “pursue[s], hunt[s], take[s], capture[s], [or] kill[s]” migratory birds. Unlike under the Endangered Species Act, MBTA liability is strictly criminal and extends to unlisted migratory bird species. There has been long-standing uncertainty over whether the MBTA’s prohibitions apply to take that is incidental to another activity. Extending the MBTA’s prohibitions to incidental take creates a significant risk of liability for a number of industries and project proponents that unavoidably take birds pursuant to their ordinary operations. The Service has attempted to reduce uncertainty by adopting voluntary guidelines that recommend best practices to avoid incidental take. But to date there has been no legally binding rule on the issue, and industry must rely almost exclusively on the government’s prosecutorial discretion.

With the courts split on the issue, the Obama administration adopted a legal opinion concluding that the MBTA prohibited certain incidental take of migratory birds. The Trump administration, however, reversed that position in a December 22, 2017 legal opinion concluding that “the text, history, and purpose of the MBTA” all indicate that the take prohibition only applies “to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.” The Service’s proposed rule would codify this interpretation, thereby making it more difficult for a later administration or court to adopt an alternative construction.

The substance of the proposed rule consists of a single paragraph: “The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.

Adopting the rule as proposed could provide energy, construction, forestry, and other industries long-sought certainty regarding the scope of MBTA liability, but not without more legal challenges. The legal opinion underlying the Service’s current MBTA interpretation is already being challenged by national environmental groups on substantive and procedural grounds. (Click here for more information about these lawsuits). While the Service may now seek to stay or dismiss those lawsuits, any final rule is nearly certain to face new litigation. Even if the final rule were upheld, project proponents should anticipate continued – and perhaps heightened – Service and state agency scrutiny over potential project impacts to certain avian species under the Endangered Species Act, Bald and Golden Eagle Protection Act, and state analogs.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 44

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About this Author

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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W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC
Principal

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 Golden Eagle Protection Act, and CITES. He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound, and successful legal strategies.

Parker brings a balanced approach to working on high profile projects to meet the objectives of developers and the legal demands of state and federal regulators. Clients involve him at all stages of project development, from initial project conception and design to defense of completed facilities. He frequently is called on to help get projects back on track when they are delayed by permitting complications and other regulatory issues, bringing to bear his extensive experience to identify innovative and effective solutions. In all cases, Parker’s goal is to help his clients complete legally-defensible projects on time and on budget.

Before joining B&D, Parker clerked at the White House Council on Environmental Quality. He also is a professionally-trained wetlands ecologist and has years of experience identifying wetlands, obtaining jurisdictional determinations from the U.S. Army Corps of Engineers, surveying for protected species, and drafting NEPA documents.

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Casey T. Clausen Business Attorney Beveridge & Diamond Seattle, WA
Associate

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...

206-315-4808
Alexander Horning Litigation Attorney Beveridge & Diamond Washington, DC
Associate

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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