News & Analysis as of

Migratory Bird Treaty Act

DOI Issues Solicitor’s Opinion That MBTA Prohibits Incidental Take

by Perkins Coie on

The U.S. Department of the Interior’s Office of the Solicitor issued Memorandum M-37041 on January 10, 2017, arguing that incidental take is prohibited under the Migratory Bird Treaty Act (MBTA). The solicitor’s opinion was...more

Second-Ever Eagle Programmatic Take Permit Soon To Be Granted For California Wind Energy Facility

by Nossaman LLP on

On November 1, 2016 the U.S. Fish and Wildlife Service (Service) announced its plan to issue what will be only the second programmatic eagle take permit under the Bald and Golden Eagle Protection Act (BGEPA) permit program...more

Circuit Courts Tackle Question of Agency Liability under the MBTA for Permitting of Wind Energy Facilities

by Nossaman LLP on

On June 7, 2016, the U.S. Court of Appeals for the Ninth Circuit rejected plaintiffs’ claim, among others, that the U.S. Bureau of Land Management’s (BLM) violated the Migratory Bird Treaty Act (MBTA) by granting a...more

Renewable Energy Update - June 2016

by Allen Matkins on

Renewable Energy Focus - Ninth Circuit upholds wind farm approval - Courthouse News Service - Jun 7 - Federal regulators adequately addressed whether a proposed wind turbine project near San Diego would...more

US Court of Appeals Affirms District Court Judgment Upholding Federal Approval of Tule Wind Project on NEPA, Migratory Bird Act,...

by Latham & Watkins LLP on

On June 6, 2016, in Backcountry Against Dumps et al. v. Jewell et al., the US Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court for the Southern District of California upholding federal...more

Fish and Wildlife Service Issues Draft 30-Year Programmatic Eagle Take Permit - Longer Permit Terms Welcome, But Certain Proposed...

by Holland & Knight LLP on

The U.S. Fish and Wildlife Service (Service) on May 6, 2016, issued a draft rule that would extend to 30 years the maximum life of permits authorizing the incidental take of bald and golden eagles pursuant to the federal Bald...more

Court Holds that the Bureau of Indian Affairs is Not Obligated to Ensure Migratory Bird Treaty Act or Bald and Golden Eagle...

by Nossaman LLP on

On March 29, 2016, the U.S. District Court for the Southern District of California granted summary judgment in favor of the Bureau of Indian Affairs (“BIA”) in a lawsuit involving the grant of a lease to Tule Wind, LLC for...more

Could the US Be “Aiding and Abetting” Cape Wind MBTA Violations?

by Davis Wright Tremaine LLP on

In the latest legal wrangling over the long-delayed Cape Wind Associates’ wind farm off Nantucket, during oral argument judges on the DC Circuit suggested that by permitting the wind farm, the US might be aiding and abetting...more

Up For Debate: What’s the Real Cost of Endangered Species Predation?

by Nossaman LLP on

On February 10, 2016, lawmakers on the House Natural Resources Subcommittee on Water, Power, and Oceans are scheduled to discuss several wildlife laws, including the Endangered Species Act (ESA), Marine Mammal Protection Act...more

Migratory Bird Treaty Act: Question Of Unintentional “Take” Primed For Potential Fifth Circuit En Banc Or Supreme Court Review

by BakerHostetler on

Recently, industry won a major legal victory regarding liability—or lack thereof—for unintentional and indirect bird deaths under the Migratory Bird Treaty Act (MBTA). Unfortunately, that victory could be short lived,...more

Fifth Circuit Reverses Citgo Convictions Under Clean Air Act and Migratory Bird Treaty Act

by Baker Donelson on

The U.S. Court of Appeals for the Fifth Circuit, in United States v. CITGO Petroleum Corp., No. 14-40128 (5th Cir. September 4, 2015), reversed the district court’s convictions of Citgo Petroleum Corp. (Citgo) for alleged...more

Prudence Prevails: Fifth Circuit Supports Narrow Reading of Liability under the Migratory Bird Treaty Act

by Beveridge & Diamond PC on

The U.S. Court of the Appeals for the Fifth Circuit recently ruled that the criminal prohibition on killing or injuring birds under the Migratory Bird Treaty Act (“MBTA”) “only prohibits intentional acts (not omissions) that...more

Citgo Prevails Over EPA at the Fifth Circuit

by Gray Reed & McGraw on

USA v. Citgo Petroleum highlights the excruciating degree of detail in federal regulations and the gymnastics the EPA will employ justify a prosecution. The Fifth Circuit has reversed Citgo Petroleum’s conviction for...more

Court Limits Migratory Bird Treaty Act Applicability to Incidental Take

by Latham & Watkins LLP on

On September 4, 2015, the US Court of Appeals for the Fifth Circuit issued a ruling in United States v. CITGO that a “taking” subject to prosecution under the Migratory Bird Treaty Act (MBTA) does not include the...more

Corporate Wrongdoing: More Civil and Criminal Liability for Individuals?

by Davis Wright Tremaine LLP on

The US Department of Justice has issued a memorandum to all of its prosecuting Divisions, directing changes to the principles applied by DOJ in prosecuting civilly or criminally individuals who engage in corporate misconduct....more

Liability for Unintentional Bird Deaths Still Up in the Air

by Saul Ewing LLP on

The recent Fifth Circuit Court of Appeals decision that unintentional bird deaths under the Migratory Bird Treaty Act (“MBTA”) are not “takes” under the MBTA and therefore not subject to criminal liability, adds fodder to the...more

Where You Operate Matters: the Fifth Circuit Widens the Split on MBTA Liability

by K&L Gates LLP on

Last week the Fifth Circuit issued a ruling that reduces uncertainty regarding criminal liability for taking migratory birds. In particular, the ruling alleviates potential liability for facilities where interactions with...more

Fifth Circuit Decision in Citgo Case May Place Limits on Criminal Liability Under Migratory Bird Treaty Act

On September 4, 2015, the US Court of Appeals for the Fifth Circuit reversed convictions of CITGO Petroleum Corporation and CITGO Refining and Chemical Company, L.P. (collectively "Citgo"), and in so doing placed potentially...more

Fifth Circuit Holds that Migratory Bird Treaty Act Does Not Apply to Incidental Takes - What It Means for Energy Developers

by Locke Lord LLP on

On September 4, 2015, the Fifth Circuit Court of Appeals reversed the misdemeanor convictions of Citgo Petroleum Corporation and Citgo Refining and Chemicals Company, L.P. (collectively Citgo) for “taking” migratory birds in...more

Birds of a Feather: The 5th Circuit Joins the 8th and 9th Circuits’ Narrow View of the MBTA’s Take Prohibition

by Perkins Coie on

On September 4, 2015, the U.S. Court of Appeals for the Fifth Circuit held in United States v. CITGO Petroleum Co. that the Migratory Bird Treaty Act’s take prohibition does not include the unintentional take of migratory...more

Fifth Circuit Spurns Second and Tenth Circuits, Sides with Eighth and Ninth Circuits on Interpretation of MBTA “Take” Prohibition

by Nossaman LLP on

Under the Migratory Bird Treaty Act (MBTA), it is unlawful to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird” protected by the Act. 16 U.S.C. 703(a) & 704(a). In a recent...more

Migratory Bird Treaty Act Narrowly Interpreted: the Fifth Circuit Joins the Eighth and Ninth Circuits

by Davis Wright Tremaine LLP on

The Fifth Circuit Court of Appeals reversed a district court decision holding CITGO liable for three misdemeanors under the Migratory Bird Treaty Act (MBTA) for bird deaths (the opinion lists 35 birds, including “twenty...more

New Regulations Could Expand CEQA Review of Impacts to Common Birds - California Department of Fish & Wildlife Proposes Draft...

by Holland & Knight LLP on

The California Department of Fish & Wildlife (CDFW) published draft regulations interpreting California laws that protect birds of prey, and the nests and eggs of birds generally. These draft regulations, released on Aug. 14,...more

Federal District Court Strikes Down Eagle Act Rule

by Perkins Coie on

On August 11, 2015, the U.S. District Court for the Northern District of California struck down the U.S. Fish and Wildlife Service’s so-called “30-Year Rule,” which had extended from 5 years to 30 years the duration of...more

FWS To Authorize Incidental Takes Under the Migratory Bird Treaty Act?

Late last month, the Fish & Wildlife Service issued a Notice of Intent to prepare a programmatic environmental impact statement to evaluate various options for authorizing incidental takes under the Migratory Bird Treaty Act....more

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