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 under the MBTA centers around whether the law criminalizes non-purposeful “taking” of birds (e.g., when they collide with a wind turbine, land in oil and gas storage pits, or fly into buildings), or only intentional “taking” of birds (e.g., by hunting). Under the Trump administration’s interpretation, the MBTA only covered purposeful, intentional take. The Biden administration has indicated an intention to move in the opposite direction. The state of the law is likely to remain murky for some time because of a split among federal courts on the issue.
Nationwide Recriminalization of Non-purposeful “Take” Will Be Difficult
Despite recent news coverage breathlessly suggesting the Biden administration will rely on a single August 2020 federal district court opinion1 to recriminalize non-purposeful take under the MBTA, a longstanding split among federal circuit courts of appeal makes that approach quite difficult. Recent articles advancing the view that a quick change is imminent have touted the administration’s actions in: (1) delaying the effective date of the Trump administration’s January 2021 rule2 that interpreted the MBTA to only apply to intentional conduct and not “incidental take”; (2) reopening the comment period on this rule3 in a likely step toward amending or rescinding it; and (3) withdrawing the Department of the Interior’s 2017 legal opinion that provided the legal reasoning for interpreting the MBTA to not criminalize incidental take.4
These recent articles often highlight how the August 2020 opinion from a federal district court in Manhattan vacated the Trump administration’s 2017 opinion,5 as though this single opinion settled the issue. However, this ignores the larger context and conflicting opinions in several circuit courts. To a large degree, this district court opinion was an outgrowth of existing Second Circuit precedent, perhaps also explaining why the challenge to the Trump administration’s opinion was filed in that particular court. The Second and Tenth Circuits have previously held that the MBTA prohibits not just intentional take, but incidental take as well.6
On the other hand, the Fifth, Eighth, and Ninth Circuits each have interpreted the reach of the MBTA’s criminal prohibitions more narrowly. The Fifth Circuit held in USA v. Citgo Petroleum Corp. that the “taking” prohibited under the MBTA is limited to deliberate acts done directly and intentionally to migratory birds.7 The Eighth Circuit found that although strict liability may be appropriate when dealing with hunters and poachers, “it would stretch this 1918 statute far beyond the bounds of reason to construe it as an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds.”8 Similarly, the Ninth Circuit concluded that habitat destruction that indirectly causes bird deaths is not a “taking” of birds within the meaning of the MBTA.9
After losing two high-profile MBTA incidental take enforcement actions against oil and gas companies, the Obama administration declined to seek Supreme Court review, notwithstanding the clear and mature circuit split. This was widely viewed as a sign that the Obama administration lacked confidence that its broad view of criminalized take under the MBTA would prevail in the Supreme Court. As a result, the Biden administration, like the Obama administration before it, apparently will seek to improve its chances of judicial success by promulgating a rule that seeks to provide firmer foundation for an agency interpretation that the MBTA criminalizes incidental take, and defending that approach under a more deferential standard of review. In the meantime, courts around the country will continue to disagree on this issue until the Supreme Court resolves the question.
What This Means for the Energy Industry
It is likely that the U.S. Fish and Wildlife Service (the “Service”) or the Department of Justice (“DOJ”) will be very cautious in prosecuting non-purposeful “take” in jurisdictions covered by judicial precedent currently limiting criminal liability to intentional take. However, the Service and DOJ have not hesitated to charge MBTA crimes where federal courts have expanded “take” to include non-purposeful conduct (e.g., in the Tenth Circuit) or where they have not decided the issue.
These conflicting views over the reach of the MBTA’s criminal prohibitions will also color the response to a potential permitting system that the new administration may pursue. The Service could create a permitting system designed to allow companies to apply to “take” a certain number of birds without facing criminal liability. A new permitting regime, perhaps using general permits to lighten the regulatory burden, could provide some regulatory certainty about when conduct that results in the death of a migratory bird would draw a criminal charge. But given the split in views among courts, it is questionable whether a new permit would be needed in those states where the MBTA has been interpreted to not prohibit incidental take. In fact, given the majority position in the circuits that do not criminalize non-purposeful “take,” and in light of the current makeup of the Supreme Court, there is substantial doubt that such a permit regulation would survive a challenge in the courts.
In sum, notwithstanding the cacophony of media statements from interest groups supporting the Biden administration’s efforts to change how it will interpret and enforce the MBTA, more thoughtful consideration highlights the legal challenges the administration will face in pursuing a broad definition of take under the MBTA to include “incidental” take. There is no one-size-fits-all answer on MBTA risk exposure, at least until the Supreme Court resolves the circuit split over the proper reach of the MBTA. For each jurisdiction in which a company has facilities or operations, the company should understand what the MBTA requires of it, what it must do, if anything, to minimize or fully prevent incidental take, and what leverage it has in the event of any potential enforcement action.
1 Nat. Res. Def. Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020).
2 U.S. Fish & Wildlife Serv., Regulations Governing Take of Migratory Birds, 86 Fed. Reg. 1134 (Jan. 7, 2021) (to be codified at 50 C.F.R. pt. 10).
3 U.S. Fish & Wildlife Serv., Regulations Governing Take of Migratory Birds; Delay of Effective Date, 86 Fed. Reg. 8715 (Feb. 9, 2021).
4 Memorandum M-37065 from Robert T. Anderson, Principal Deputy Solicitor, U.S. Dep’t of the Interior, to Sec’y of the Interior, Permanent Withdrawal of Solicitor Opinion M-37050 “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take” (Mar. 8, 2021), available at https://www.doi.gov/sites/doi.gov/files/permanent-withdrawl-of-sol-m-37050-mbta-3.8.2021.pdf.
5 Nat. Res. Def. Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020).
6 See United States v. FMC Corp., 572 F.2d 902, 907-08 (2d Cir. 1978); United States v. Apollo Energies, Inc., 611 F.3d 679, 690 (10th Cir. 2010).
7 801 F.3d 477, 488-89 (5th Cir. 2015).
8 Newton Cnty. Wildlife Ass’n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir. 1997); United States v. Brigham Oil & Gas, L.P., 840 F. Supp. 2d 1202, 1214 (D.N.D. 2012).
9 See Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 302 (9th Cir. 1991).