A century-old statute enacted to protect birds that cross international boundaries has become the object of conflicting legal interpretations, sowing confusion over what kinds of acts leading to the injury of death of a protected species can be punished by a fine or even a prison sentence.
Now, the Trump administration’s Fish & Wildlife Service (FWS), a division of the Interior Department, is stepping in to define the scope of the 1918 Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes, and other affected parties.
By proposing to codify FWS’s existing interpretation that the prohibitions of the MBTA only apply to actions “directed at” migratory birds, their nests, or their eggs, FWS is taking a significant step toward clarifying confusion that has resulted from no fewer than five recent conflicting circuit court of appeals decisions on the scope of the MBTA, as well as conflicting interpretations by the Obama administration and the Trump administration..
The muddled legal interpretation of what constitutes a “take” of a protected bird under the MBTA has opened the door to protracted litigation as the public has struggled to understand what the law actually says.
Obama vs. Trump Interpretations
On Jan. 10, 2017 – ten days before the Obama administration left office – the Solicitor General at the Obama Interior Department issued a legal opinion, according to which any act that takes or kills a migratory bird – regardless of the violator’s intention or state of mind – falls within the scope of the MBTA as long as it results in the death of a bird. But on Dec. 22, 2017, the Trump administration issued its own Solicitor’s Opinion concluding that an otherwise lawful activity that results in the incidental take of a protected bird does not violate the MBTA.
In its proposed rulemaking, FWS codifies the Trump Solicitor’s Opinion. As pointed out in CFACT’s public comments submitted to FWS on March 18:
The proposed codification differentiates between wanton acts of destruction and criminal negligence, on the one hand, and the accidental or incidental take of a protected bird, however regrettable, on the other. U.S. law has long differentiated between harm caused by intent and harm caused by accident. The proposed rulemaking extends that practice to the MBTA.
The rulemaking would also change how FWS administers the MBTA by determining that an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) is the most efficient and comprehensive approach for considering the potential impacts of this action on the environment. Until recently, such a proposal would have been a fool’s errand because of the extraordinary delays long associated with the NEPA process. However, with the White House Council on Environmental Quality (CEQ) having recently proposed a long-overdue streamlining of the NEPA process, CEQ’s rulemaking – assuming it survives legal challenges – compliments what the Service is proposing to do with regard to the MBTA.
Court Battles Loom
Both the Trump administration’s clarification of the MBTA and its reforms of the National Environmental Policy Act will be challenged in court by environmental groups. If they survive those challenges, at least some of the litigation and red tape that have surrounded environmental policy for decades will be trimmed back.