January 25, 2022

Volume XII, Number 25


January 24, 2022

Subscribe to Latest Legal News and Analysis

Migratory Bird Treaty Act Liability Rule Looks to Be Short-Lived

The Biden Administration is moving quickly to undo the Trump Administration’s Migratory Bird Treaty Act (MBTA) liability rule. Published as a final rule on January 7, 2021, this rule for the first time supplied a uniform regulatory definition of the scope of liability under the Act. It interpreted the MBTA’s prohibitions as applying only to actions that are “directed” at migratory birds, and not to actions that “incidentally take” them.

The Biden Administration has taken several steps to undo the rule. On February 5, 2021, the Fish and Wildlife Service (FWS) delayed the effective date of the rule until March 8, 2021, and re-opened the public comment period on whether the rule should be amended, rescinded, further delayed, or allowed to go into effect.

In its latest move on March 8, 2021, the Department of the Interior withdrew its 2017 legal opinion which preceded and formed the basis of the rule. This opinion has been the subject of legal challenges and was vacated by a federal district court in August 2020.  Natural Resources Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020). In withdrawing the opinion, Interior stated that this federal court decision was consistent with its long-standing interpretation of the MBTA.

It is therefore likely that the Trump Administration’s MBTA liability rule will be short-lived. In its place the Biden Administration may return to policies initiated under the Obama Administration, which had considered a proposal to develop an incidental take program. Industry and project proponents undertaking activities potentially affecting migratory birds should closely monitor these developments.

© 2022 Beveridge & Diamond PC National Law Review, Volume XI, Number 68

About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC

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...

Alexander Horning Litigation Attorney Beveridge & Diamond Washington, DC

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

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...

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

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...