I. Background

This article is a follow-up to our January 29, 2018 article which discussed the United States Solicitor’s December 22, 2017 Memorandum Opinion, M-37050 (the “M-Opinion”). To provide a quick recap of that article, the M-Opinion concluded that the Migratory Bird Treaty Act (“MBTA”) does not criminalize the “incidental take,” or unintentional killing, of migratory birds. But as we pointed out, the M-Opinion did not remove or supersede a Clinton-era Executive Order, other related statutes, or the various inter-agency Memorandums of Understanding that compel agencies to take action to minimize incidental take. Ultimately, notwithstanding the M-Opinion, agencies can still be expected to impose costly mitigation upon projects as a condition precedent to the issuance of permits, only now without the threat of criminal liability. In conclusion, we noted that more guidance needs to be developed to address the discrepancies between these authorities and to reign in agencies’ abilities to require “voluntary” mitigation measures aimed at reducing the “incidental take” of migratory birds.

On April 11, 2018, the Principal Deputy Director of the U.S. Fish and Wildlife Service (“FWS”) issued a memorandum offering guidance to FWS on the M-Opinion (the “Guidance Memo”). The Guidance Memo itself is short, less than two pages, but attaches “Frequently Asked Questions Regarding Implementation of the M-Opinion,” which are meant to “clarify the effect of the M-Opinion.”

II. The Guidance Memo
The Guidance Memo is a type of document that has much less weight and permanence than the M-Opinion. An M-Opinion is issued by the top lawyers within the Department of the Interior, is binding upon the entire Department and all agencies thereunder, and can only be changed or revoked by the uppermost authority within the Department. Comparatively, the Guidance Memo is an agency-specific policy document. It does not bind other agencies within the Department and it can be revised or revoked by a much larger pool of people within the Department. Consequently, the Guidance Memo only applies to FWS and is subject to modification and revocation on an ad hoc basis.

The Guidance Memo affirms that FWS still includes migratory bird preservation as an integral part of its mission, but clarifies that FWS “interpret[s] the M-Opinion to mean that the MBTA’s prohibitions on take apply when the purpose of an action is to take migratory birds, their eggs, or their nests.”  It goes on state that, in broad terms, “the take of birds, eggs or nests occurring as the result of an activity, the purpose of which is not to take birds, eggs or nests, is not prohibited by the MBTA.”

The Guidance Memo also confirms that the M-Opinion, while binding upon FWS as relates to the MBTA, does not affect FWS’s responsibilities under other statutes, such as the Endangered Species Act, the Bald and Golden Eagle Protection Act, and the National Environmental Policy Act.

The Guidance Memo concludes by stating, unequivocally, that the FWS “will not withhold a permit, request or require mitigation based on incidental take concerns under the MBTA.” The Guidance Memo likewise specifies that the FWS “will ensure that [its] comments, recommendations, or requirements are not based on, nor imply, authority under the MBTA to regulate incidental take of migratory birds.”

III. Frequently Asked Questions
Looking at the “Frequently Asked Questions”(“FAQs”) attached to the Guidance Memo, FWS has adopted a broad reading of how to interpret the M-Opinion. The FAQs make clear that in enforcing the MBTA the FWS will look to the actor’s subjective intent for any underlying action, and if the intent of the action is for any reason other than to intentionally take a migratory bird, their eggs, or their nest, then there the action does not violate or implicate the MBTA.

The FAQs go so far as to state that even if a person knows that an action will cause harm to a migratory bird, their nest or eggs, it is still not a violation of the MBTA if the purpose of the activity is for any reason other than intentionally causing harm to a migratory bird, their nest or eggs.

For example, FAQ 1(b) asks: “A homeowner knows that Chimney Swifts are nesting in their chimney. If the homeowner lights a fire and destroys the nests, is this considered intentional take or incidental take under the M-Opinion?”  In answering the FAQ, the guidance provides: “A permit [for intentional take] would not be needed if the homeowner lit the fire for purpose of heating the house regardless of whether they were aware of swift nests in the chimney.” In other words, if the fire was intended to heat the house, the injury would be considered incidental take.

Another FAQ explains that the removal of a structure that causes the death of a migratory bird would not be a violation of the MBTA. In removing a structure “[t]he landowner’s knowledge, or whether [harming a migratory bird] was reasonably foreseeable . . . is not relevant. All that is relevant is that the landowner undertook an action that did not have the killing of [a migratory bird] as its purpose.”

The FAQs clarify that the M-Opinion only affects interpretation of the MBTA—not any other legislation. The FAQs also confirm that FWS will still include bird protection measures under other statutes, such as the Endangered Species Act, but incidental take coverage under the Endangered Species Act should only address species covered under that Act and not the broader list of species covered under the MBTA. 

Finally, the FAQs state that current settlement agreement negotiations “should not address incidental take of migratory birds for purposes of enforcing the MBTA.”  For those involved in such negotiations, this may be unrealistic; were such provisions not included, that could make a settlement agreement problematic in the event the political winds change and incidental take under the MBTA is once again considered prohibited.

The FAQs do not, however, answer whether FWS will revisit past settlement agreements that require ongoing mitigation practices to reduce incidental take. According to FAQ #4, that issue is still being decided.

IV. Concluding Thoughts and Takeaways
The Guidance Memo and FAQs go further than the M-Opinion.  Recall that the M-Opinion focused on and clarified that incidental take of migratory birds was no longer criminalized.  The Guidance Memo takes that further by stating that FWS will not condition or delay the issuance of permits on mitigation requirements to address incidental take of migratory birds under the MBTA.

The Guidance Memo still states that the FWS will “continue to develop best management practices to protect migratory birds and their habitats in partnership with any industry, federal, state, and tribal entity as interest dictates, and in the course of project review….”  Effectively, this means that the BLM (which is not governed by the Guidance Memo) could, in deciding whether to issue a right-of-way, still condition its approval on the imposition of “voluntary” mitigation measures to address incidental take of migratory birds, and the FWS would aide in proposing such measures. 

This FWS Guidance Memo may be a step in the right direction, but it is not nearly enough on a larger scale. Other agencies still remain unchecked in their ability to condition permits and approvals on the imposition of costly “voluntary” mitigation measures to address incidental take of migratory birds. See our previous memo “Bye, Bye Birdie: Summary and Analysis of the Trump Administration's Recent Policy Change of the Migratory Bird Treaty Act” and the citations therein.

Ultimately, if the Trump Administration truly wants to reduce the burden of mitigation requirements for projects that require a federal approval or permit with respect to incidental take of migratory birds, then it must rescind EO-13186 and issue a new Executive Order that, in no uncertain terms, prohibits the imposition of mitigation measures to address incidental take of migratory birds as a condition precedent to receiving approval, authorization, or permits from federal agencies.  Without such a step, because of EO-13186 and the resultant inter-agency MOUs, anybody seeking federal approvals or permits for activities that may cause the incidental take of migratory birds can still expect the imposition of “voluntary” mitigation measures as a condition precedent to any approval or permit.