January 18, 2022

Volume XII, Number 18

Advertisement
Advertisement

January 18, 2022

Subscribe to Latest Legal News and Analysis

Migratory Bird Treaty Act Liability Rule Finally Is Here, But For How Long?

In a long-unfolding saga, on January 7, 2021, the U.S. Fish and Wildlife Service (FWS) published its final rule that will at long last establish a clear regulatory definition of the scope of liability under the Migratory Bird Treaty Act of 1918 (MBTA). The rule codifies the Trump administration’s oft-criticized interpretation that the MBTA criminal prohibitions apply only to actions “directed” at migratory birds, and not to actions that “incidentally take” them. Energy, construction, mineral extraction, and nearly any industry with outdoor operations will benefit from the new rule’s common sense standard for MBTA liability. It is uncertain how long the ovation will last, however, given both the impending change of administrations and long line of environmental groups already forming to challenge the rule.

The MBTA is a strict liability statute that carries criminal penalties for any act that “takes” a migratory bird. Federal courts across the nation have long disagreed over whether the MBTA applies to actions that incidentally take migratory birds: thus, depending on where it happens, incidentally taking a migratory bird while carrying out otherwise lawful activities could mean exposure to criminal liability or no liability at all. Although the stakes are high, until now, industry has had to rely primarily upon implementing stringent impact avoidance measures, FWS’s prosecutorial discretion, and internal agency policies to avoid liability.

The Trump administration has sought to reduce that uncertainty by establishing a uniform definition of “take” under the MBTA. In a December 2017 legal opinion, the administration concluded 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” and does not criminalize incidental take. The rule codifies this interpretation of the statute.

If the rule stands, it will provide a long-sought standard for the scope of MBTA liability. But whether it stands is uncertain. First, while the rule is “final,” it will not take effect until February 8, 2021. That likely spells trouble for the rule because the incoming Biden administration, like the Trump administration before it, is expected to issue a moratorium on all regulations under development as of Inauguration Day. For regulations like this rule that have been published in the Federal Register but have not yet taken effect, an executive moratorium of this sort likely will direct agency heads to consider extending the effective date and, potentially, re-opening the notice-and-comment period. The rule could go anywhere from there, including on the cutting room floor. Second, and more pointedly, the Trump administration’s legal opinion preceding the rule was recently vacated by the U.S. District Court of the Southern District of New York. The court held that the interpretation of the MBTA in the legal opinion, which now is mirrored in FWS’s new rule, is contrary to the plain language of the statute. Environmental groups are certain to challenge the rule on similar grounds. So, while the arrival of the new MBTA rule is a welcome development for the regulated community, it might be a short stay. In the near-term, regulated entities should continue to consider proactive strategies to avoid and mitigate their operations’ potential impacts on migratory birds.

© 2022 Beveridge & Diamond PC National Law Review, Volume XI, Number 8
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

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...

202-789-6009
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...

202-789-6028
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
Principal

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.

Service Areas & Industries

  • Biotechnology...
202-789-6061
Advertisement
Advertisement
Advertisement