Environmental, land and natural resources alert

On September 29, 2021, the United States Department of the Interior (Interior) announced a series of actions to overturn a Trump-era rule in an attempt to “ensure that the Migratory Bird Treaty Act (MBTA) maintains the birds today and in the future ”. First, on October 4, 2021, the US Fish and Wildlife Service (Service) released a final rule repealing the Trump-era regulations that limited the scope of the MBTA (MBTA Final Revocation Rule).¹ Additionally, on October 4, 2021, the Service issued an Advance Notice of Regulatory Proposal (ANPR) announcing the intention to solicit comments and information from the public to help develop draft regulations that would establish a licensing system for authorize the accidental taking of migratory birds under certain conditions.² Finally, the Service issued a Director’s Order “establishing criteria for the types of conduct that will be prioritized for law enforcement activities with respect to the incidental take of migratory birds.”

The MBTA and the rules in context

For several decades, the Interior interpreted the MBTA as prohibiting the accidental or accidental capture and killing of protected birds.³ As recently as January 2017, Interior reaffirmed its “long-held interpretation that the MBTA prohibits bycatch.”

Since violations of the MBTA are strict liability crimes and, unlike the Endangered Species Act and the Golden and Bald Eagle Protection Act, also administered by the Service, the MBTA does not have a bycatch permit program, many companies and developers have been exposed to potential liability under the MBTA. even while engaging in lawful activities. For example, a business could be held liable for a misdemeanor under the MBTA if a protected bird dies after hitting a wind turbine or building, or if a nest is destroyed while plowing a field or chopping wood.

In December 2017, however, following the change of administration, Interior radically changed course by issuing Memorandum M-37050 (the M-Opinion).⁴ According to M-Opinion, only deliberate acts aimed at capturing a migratory bird are prohibited under the MBTA. Accidental bird deaths are not prohibited. This interpretation of the MBTA has significantly reduced the activities that would result in liability and, therefore, the risks that businesses and developers face.

On August 11, 2020, a New York City federal district court ruled that Interior’s M-Opinion violated the letter of the law over the past century and contradicts Interior’s long-held position that even taking or putting accidental death of a migrating bird violated the MBTA “regardless of whether the activities targeted birds or aimed at taking or killing birds.”⁵ The court said that while Congress could have limited the MBTA, it chose not to and that there is no basis for imposing such a limitation on the scope of the MBTA based on the unambiguous wording. of the law.⁶

On January 7, 2021, in response to the Federal District Court ruling, the Trump administration finalized a rule that significantly reduced the activities that would result in liability under the MBTA and, therefore, reduced the risks to which businesses and developers are faced with.⁷ Under the rule, the Service said the MBTA only covered the intentional and non-accidental taking of protected birds, thereby codifying the M-Opinion which was rejected by a federal court.⁸ Under the Trump-era rule, the MBTA’s liability applied only to deliberate and willful positive actions “aimed at killing or reducing an animal under human control, such as when a hunter shoots an animal. protected bird causing its death ”.⁹ However, “actions which are not aimed at subjecting an animal to human control” but could result in the death of protected birds, such as “driving a car, allowing a cat to roam outside or erecting a glass building.[,]Were no longer subject to the responsibility of the MBTA.^ten

Biden administration’s MBTA actions and key takeaways

The Service has now officially repealed the Trump-era rule, stating:

The Jan. 7, 2021 final rule limiting the scope of the MBTA has raised significant concerns from the public and international treaty partners and created numerous legal challenges. With this final and formal revocation of the January 7 rule, the Service returns to the implementation of the MBTA by prohibiting bycatch and applying the enforcement discretion, in accordance with long-standing case law and practice. agencies before 2017.¹¹

According to Federal Register, the final MBTA revocation rule will come into effect on December 3, 2021. The final MBTA revocation rule “does not also include the codification of [the Service’s] the current interpretation of the MBTA as it applies to bycatch, it simply repeals the previous rule codifying [the Service’s] old interpretation and nothing more.¹²

With the ANPR of October 4, 2021, “the Service begins the process of codifying the interpretation according to which the MBTA prohibits accidental catches and develops an approach to authorize the accidental catches of migratory birds”.¹³ The ANPR publication kicks off a 60-day public comment period (ending December 3, 2021) on potential regulations to allow the incidental take of migratory birds. The Service will also be hosting consumer webinars in November 2021, providing an additional opportunity for public comment.

The Service is considering a three-tier approach to authorizing bycatch:

1. Explicit exceptions to the MBTA’s ban on bycatch (eg, for non-commercial activities – think of the owner – that capture birds);
2. A general permit scheme allowing certain types of activities (e.g., potentially similar to the U.S. Army Corps of Engineers national permit scheme under the Clean Water Act, with permit conditions for a specific activity or tailored to specific industries and with effective permits upon submission of the coverage request); and
3. An individual permit program (eg, similar to the Service’s existing Migratory Bird Permit program at 50 CFR Subpart C for discrete activities such as import and export permits).¹⁴

The Service is seeking comments on “the appropriate criteria for when a given project qualifies except for a permit, meets general permit requirements, or should apply for a specific permit.”¹⁵ The Service also indicated that it was considering individual and general permit authorizations for specific activities, including onshore and offshore wind power generation; solar energy production; electricity transmission and distribution infrastructure; communication towers; pipes for methane and other gas burners; oil, gas and sewage disposal pits; construction and maintenance of transport infrastructure; and bycatch in sea fishing.¹⁶

Finally, the Director’s Order “confirms that the Service has restored its long-standing policy and practice of enforcing the MBTA in accordance with its interpretation of the Act as prohibiting the accidental taking of federally protected birds on the list of migratory birds ”.¹⁷ The decree explains that the Service will concentrate its enforcement efforts on specific activities (1) which predictably lead to accidental catches. and (2) when the project promoter does not implement known beneficial practices to avoid or minimize bycatch.

For now, the bottom line for businesses and developers in the United States is that there is increased uncertainty about potential liability – or, more importantly, how and when the Service will use its enforcement discretion – in under the MBTA for actions that accidentally or accidentally kill protected birds. At a minimum, for projects likely to cause bycatch, the project proponent should conduct activities in accordance with applicable best practices to avoid and minimize bycatch.

Adding to the uncertainty, there remains a division between US circuit courts over how MBTA liability applies. The Fifth, Eighth and Ninth Circuits ruled that the MBTA’s liability applies only to the intentional taking of migratory birds.¹⁸ Meanwhile, the Second and Tenth Circuits came to the opposite conclusion, holding that criminal liability under the MBTA extends to the unintentional taking of migratory birds. This division of the circuit is likely to feature prominently in any litigation challenging the MBTA revocation rule or other future Service rules on the scope of MBTA liability.

The cloud of regulatory uncertainty is likely to persist unless and until the Service can finalize a lasting rule establishing a bycatch authorization program under the MBTA.