On Aug. 11, 2020, a federal district court overturned the Trump administration’s 2017 interpretation of the Migratory Bird Treaty Act (“MBTA”). The MBTA implements four international conservation treaties and is intended to ensure the sustainability of populations of protected migratory bird species. The administration, in a reverse of nearly 50 years of policy, had argued that the MBTA applied only to the direct and affirmative purposeful killing of birds and not “incidental” killings.
The Trump administration’s attempt to remove incidental killings from the scope of the MBTA began in response to a January 2017 memorandum, issued by the Obama administration’s outgoing Solicitor of the Department of Interior (“DOI”), that reaffirmed DOI’s “long-standing interpretation that the MBTA prohibits incidental take.” After the change in administrations, the Principal Deputy Solicitor of DOI issued a new memorandum (the “Jorjani Opinion”), which withdrew and replaced the January 2017 memorandum. The Jorjani Opinion stated that the range of prohibited actions under the MBTA “exclude[s] more attenuated conduct, such as lawful commercial activity that unintentionally and indirectly results in the death of migratory birds.” The Jorjani Opinion concluded that “the MBTA’s prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same applies only to direct and affirmative purposeful actions.”
Consistent with the Jorjani Opinion, the Fish and Wildlife Service (“FWS”) issued an April 2018 memorandum, stating that the FWS “will not withhold a permit, request, or require mitigation based upon incidental take concerns under the MBTA.”
The Jorjani Opinion was challenged in three now-consolidated suits brought by the Natural Resources Defense Council, the National Audubon Society and a coalition of eight states. All three complaints argued that the Jorjani Opinion was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” and sought vacatur of the Jorjani Opinion and any subsequent agency guidance.
In an Aug. 11 decision, Judge Valerie Caproni of the U.S. District Court for the Southern District of New York rejected the administration’s arguments, granted the plaintiffs’ motions for summary judgment, vacated the Jorjani Opinion, and remanded to the agency for further proceedings. The court found that the Jorjani Opinion was not entitled to deference because it was a recent and sudden departure from a long-held agency position and was an informal pronouncement lacking notice-and-comment or other protective rulemaking procedures. As such, the Jorjani Opinion was contrary to law. The court held that nothing in the MBTA suggests that an activity must be directed specifically at birds in order to be prohibited, nor does it prohibit only intentional killings.
The court, citing the Supreme Court’s decision in Massachusetts v. EPA, concluded that the “MBTA’s impressive scope reflects an intentional effort to confer the flexibility necessary to forestall its obsolescence.” Despite the strong wording, the practical effect of the decision may be minimal. The court only vacated the Jorjani Opinion and remanded it to the DOI; it did not vacate the FWS guidance that implemented the Jorjani Opinion, nor did it restore the January 2017 memorandum that had been replaced by the Jorjani Opinion. As such, the Trump administration is unlikely to enforce the MBTA against incidental killings while the appeal process continues.
Additionally, the Trump administration continues to pursue a rulemaking to codify the Jorjani Opinion. Though the court’s opinion undercuts some of the rationale for the proposed rule, it does not prevent the rule from being adopted at the end of the rulemaking process. Nonetheless, if the rule is promulgated, successful challenges based on this case seem inevitable.