News & Analysis as of

Migratory Bird Treaty Act (MBTA) Incidental Take Permits

Husch Blackwell LLP

Taking Permitting to New Heights: New Eagle Take Permit Rule’s Impact on Project Developers and Operators

Husch Blackwell LLP on

Last month, in 89 FR 9920, the U.S. Fish and Wildlife Service (“USFWS”) published a final rule revising the eagle take permit (“ETP”) process. USFWS believes the new rule will encourage more participation in the ETP program...more

Brownstein Hyatt Farber Schreck

Regulatory Ping Pong Creates New Enforcement Paradigms for Migratory Bird Treaty Act

On Oct. 4, 2021, the Fish and Wildlife Service (“FWS”) issued a final rule, effective Dec. 3, 2021, restoring the Migratory Bird Treaty Act (“MBTA”) to prohibit the incidental take of migratory birds. The interpretation and...more

Perkins Coie

US Fish and Wildlife Service Reinstates MBTA Interpretation and Seeks Input on Take Permitting Scheme

Perkins Coie on

The U.S. Fish and Wildlife Service revoked its January 7, 2021, rule defining the scope of the Migratory Bird Treaty Act as it applies to conduct that results in the injury or death of protected migratory birds. Revocation of...more

Troutman Pepper

Changes to Migratory Bird Treaty Act Program Announced

Troutman Pepper on

On October 4, the U.S. Fish and Wildlife Service (FWS) published a revision of its interpretation of the Migratory Bird Treaty Act (MBTA). With the final rule, FWS has effectively reinstated its position that “incidental...more

Nossaman LLP

Biden Administration Turns Its Focus on Birds

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In the last few weeks, the U.S. Fish and Wildlife Service (Service) has published several major regulatory actions affecting federal avian protections.  The Service has repealed a Trump-era rule that excluded incidental take...more

Beveridge & Diamond PC

Incidental Take of Migratory Birds Once Again a Federal Crime; FWS Considering New Permitting Program

Beveridge & Diamond PC on

After a brief hiatus, incidental take of migratory birds will again be a federal crime beginning December 3, 2021. Less than 10 months after instituting a final rule declaring that incidental take of birds is not subject to...more

Nossaman LLP

USFWS Publishes Revised Economic Analyses for MBTA Incidental Take Proposed Rule

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This week, the U.S. Fish and Wildlife Service (“USFWS”) announced the availability of two revised economic analysis documents related to the agency’s proposed rule concerning incidental take under the Migratory Bird Treaty...more

Locke Lord LLP

Fish and Wildlife Service Proposes to Restore Incidental Take Prohibition Under Migratory Bird ‎Treaty Act – What You Need to Know

Locke Lord LLP on

On May 7, 2021, the U.S. Fish and Wildlife Service (“USFWS” or “Service”) published a proposed rule that would restore the traditional interpretation of the Migratory Bird Treaty Act (“MBTA”) as prohibiting incidental take...more

Vinson & Elkins LLP

Biden Administration Looks To Recriminalize Accidental Bird Deaths In Traditional And Renewable Energy Sectors

Vinson & Elkins LLP on

The Biden administration has signaled its intention to recriminalize non-purposeful, or incidental, “takes” of birds under the Migratory Bird Treaty Act (“MBTA”). The longstanding debate over the scope of criminal liability...more

Nossaman LLP

Department of Interior Takes Steps Toward Reversal of Position on Migratory Birds Protections

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Recently, the Department of the Interior released a pre-publication version of a Federal Register notice delaying the effective date of the Migratory Bird Treaty Act (MBTA) take definitional rule to March 8, 2021, and opening...more

Nossaman LLP

Trump Administration Finalizes Migratory Bird Rule

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On January 7, 2021, U.S. Fish and Wildlife Service (USFWS) published a final rule limiting the scope of the Migratory Bird Treaty Act (MBTA)’s prohibition on the take of migratory birds....more

Allen Matkins

California Environmental Law & Policy Update - August 2020 #2

Allen Matkins on

Federal court blocks Interior Department’s relaxation of migratory bird safeguards - U.S. News & World Report – August 12 - The U.S. District Court for the Southern District of New York this Tuesday struck down a U.S....more

Nossaman LLP

Court Reignites Migratory Bird Treaty Act Question

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On August 11, 2020, a federal district court in New York ruled that the unintentional or incidental “take” of migratory birds is a crime under the Migratory Bird Treaty Act (“MBTA”), vacating a Department of the Interior...more

Orrick, Herrington & Sutcliffe LLP

Virginia’s Alternative Take on Migratory Birds

The Commonwealth of Virginia is pursuing migratory bird protection in response to the Trump administration’s proposed relaxation of Migratory Bird Treaty Act (“MBTA”) enforcement....more

(ACOEL) | American College of Environmental...

Migratory Bird Treaty Act -- Scope of Act Rule

On February 3rd, the U.S. Fish and Wildlife Service (USFWS) published a Notice of Proposed Rulemaking that would completely eliminate criminal penalties for “incidental” migratory bird deaths under the Migratory Bird Treaty...more

Perkins Coie

Bird Is the Word: US Fish & Wildlife Service Proposes Narrow Interpretation of Migratory Bird Treaty Act

Perkins Coie on

The U.S. Fish and Wildlife Service issued a proposed rule on January 30, 2020, that narrowly interprets the protections afforded by the Migratory Bird Treaty Act. The new rule would provide that the MBTA prohibits only the...more

Mitchell, Williams, Selig, Gates & Woodyard,...

Migratory Bird Treaty Act: U.S. Fish and Wildlife Service Proposal Addressing Definition of "Take"

The United States Fish and Wildlife Service (“Service”) announced the proposal of a rule that would define a key issue regarding the scope of the Migratory Bird Treaty Act (“MBTA”). The proposed rule is focused on the MBTA...more

Nossaman LLP

USFWS proposes to codify Trump Administration position on MBTA

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Yesterday, the U.S. Fish and Wildlife Service (USFWS) released a pre-publication version of its long-awaited update to regulations governing Migratory Bird Treaty Act (MBTA) implementation (Proposed Regulations)....more

Perkins Coie

California Affirms State Law Prohibition of Incidental Take of Migratory Birds Despite Contrary Federal Stance

Perkins Coie on

The California Department of Fish and Wildlife and the California attorney general have jointly issued an advisory regarding California’s state law protections for migratory birds. The three-page advisory affirms that...more

Beveridge & Diamond PC

NGOs Challenge Department of Interior’s New Interpretation of “Incidental Take” Liability Under Migratory Bird Treaty Act

National environmental groups recently filed a pair of new lawsuits in New York federal district court seeking to expand the scope of liability for “incidental take” under the Migratory Bird Treaty Act (“MBTA”). The...more

Mitchell, Williams, Selig, Gates & Woodyard,...

Migratory Bird Treaty Act: Environmental Organizations File Lawsuit Challenging Department of Interior Solicitor's Interpretive...

A number of environmental organizations filed a May 24th Complaint for Declaratory and Injunctive Relief (“Complaint”) challenging as unlawful and arbitrary and capricious the: . . . December 22, 2017 Solicitor’s...more

Akin Gump Strauss Hauer & Feld LLP

Fish and Wildlife Service Doubles Down on Department of Interior Opinion on Migratory Bird Treaty Act (MBTA)

On April 11, 2018, the U.S. Fish and Wildlife Service (FWS) issued a Memorandum titled “Guidance on the recent M-Opinion affecting the Migratory Bird Treaty Act” (the “Memorandum”), giving field advice to its enforcement...more

Clark Hill PLC

Summary and Analysis of the United States Fish and Wildlife Service's "Guidance on the recent M-Opinion affecting the Migratory...

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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...more

Eversheds Sutherland (US) LLP

Despite DOI policy reversal on incidental takes, project developers still face risk of criminal liability under MBTA

At the end of 2017, the Department of the Interior (DOI) announced that it will no longer pursue criminal enforcement for “incidental takes” under the Migratory Bird Treaty Act (MBTA). The change in legal interpretation of...more

Nossaman LLP

Ninth Circuit Rules Migratory Bird Treaty Act Permits Take of Barred Owl to Study Impacts on Conservation of Threatened Northern...

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In a recent decision, the U.S. Court of Appeals for the Ninth Circuit affirmed that the U.S. Fish and Wildlife Service’s (Service) permit allowing take of the barred owl (Strix varia) to protect the threatened Northern...more

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