Official Comment to the U.S. Fish and Wildlife Service (FWS)

From:  The Committee For a Constructive Tomorrow

By: Bonner Cohen Ph.D.

Title: For EIS No. 20200117, Draft, USFWS, REG, Regulations Governing Take of Migratory Birds

I am pleased to have the opportunity to comment on the U.S. Fish & Wildlife Service’s (Service) proposed regulation (HQ MB-2018-0090-8411) pertaining to the Migratory Bird Treaty Act (MBTR). In its proposed rulemaking, the Service points to the “potential for a convoluted patchwork of legal standards, all purporting to apply to the same underlying law.”

There is more than “potential” at work here; the convoluted patchwork already exists and is sowing confusion and uncertainty among entities subject to the MBTA. The proposed rule correctly states that the MBTA is a national law covering companies and projects with potential liability that operate across boundary lines of judicial circuits, some of which have issued conflicting opinions on the scope of the MBTA. Hence, it is imperative to codify and apply a uniform interpretation of the MBTA stating that its interpretations do not apply to incidental take, based on the Fifth Circuit ruling in United States v. CITGO Petroleum Corporation. This can most effectively be achieved by limiting the scope of the MBTA to actions that are directed against migratory birds, their nests, or their eggs, and by clarifying that 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 MBTA. Inconsistency and uncertainty built into the current MBTA enforcement regime mean that owning and operating a power line or oil and gas drilling site pose an inherent risk of incidental take.

The proposed rule, as written, addresses this intolerable situation in a constructive manner and, in so doing, reduces the prospects for protracted and pointless litigation. Thank you very much. Bonner R. Cohen, Ph. D., Committee for a Constructive Tomorrow.