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 accompanied by a new section of the U.S. Fish & Wildlife Service Manual that similarly articulates the position that the MBTA prohibits the incidental take of migratory birds. In doing so, DOI takes a firm stance on an issue of regulatory uncertainty that is in much need of legal clarity, especially in light of the current circuit split in the federal appeals courts.
The MBTA prohibits the unauthorized taking or killing of over one thousand species of migratory birds, many of which are common and abundant. The MBTA is a strict liability criminal law with potentially broad applicability. Specifically, the act makes it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess . . . any migratory bird . . . or any part, nest, or egg of any such bird.” 16 U.S.C. §§ 703-712. The MBTA was enacted in 1918 to implement an international treaty to protect migratory birds threatened by the commercial trade of migratory birds and their feathers. While the take prohibition’s language is broad, neither the statute nor its legislative history addresses whether the MBTA was intended to prohibit “incidental” or unintentional take of migratory birds.
Courts are divided on the issue. Some courts have concluded that the MBTA applies only to intentional take and does not prohibit incidental take. Most notably, in 2015, the U.S. Court of Appeals for the Fifth Circuit held in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), that the MBTA’s take prohibition does not include the unintentional take of migratory birds. Prior to the CITGO decision, the U.S. Court of Appeals for the Eighth Circuit and U.S. Court of Appeals for the Ninth Circuit similarly held that the MBTA applied only to intentional take or capture of migratory birds, such as hunting or trapping. In contrast, the U.S. Court of Appeals for the Second Circuit and U.S. Court of Appeals for the Tenth Circuit have held that the act prohibits not only intentional take but also unintentional take, which may include take resulting from contact with industrial wastewater ponds, power lines, wind turbines or solar arrays.
The U.S. Fish and Wildlife Service has consistently taken the position that the MBTA prohibits incidental take, not just intentional take. Recently, the FWS has increased attention to the incidental take of migratory birds, as seen in high-profile settlement agreements for MBTA violations at wind energy projects. Consistent with this view, the FWS issued a Notice of Intent in 2015 that it was considering the development of regulations to provide legal authorization for incidental take in certain circumstances; however, no proposed rule or environmental impact statement has been issued. The anticipated rulemaking had two parts: first, to set up the permit system; and second, to define take under the MBTA to include incidental take and explain the legal rationale for that conclusion. The rulemaking has not gone forward, although the solicitor’s opinion now seems to address the second part of it.
The solicitor’s opinion notes at the outset that because of the confusion caused by the conflicting case law, the Office of the Solicitor worked closely with the FWS to “comprehensively review the question of whether the MBTA applies to incidental take.” The resulting solicitor’s opinion presents DOI’s legal analysis supporting the interpretation that the MBTA prohibits incidental take.
In reaching its conclusion, the solicitor’s opinion analyzes the plain text and legislative history of the MBTA, as well as the four treaties underlying the act. It also examines past FWS practice in implementing the MBTA, and it contains a significant discussion of the caselaw, seeking to portray the contrary cases as erroneous.
The opinion concludes that the MBTA’s broad prohibitions on taking and killing migratory birds apply to any activity and are not limited to hunting, poaching or any factual contexts. Therefore, the prohibition extends generally to unauthorized take of migratory birds, including take that is incidental to industrial or commercial activities. The MBTA imposes strict liability, so the government need not show that a defendant intentionally took birds to prove a violation.
The opinion acknowledges, however, that the take prohibition is subject to the limits of proximate causation. It applies to a “direct” take in which there is a close causal connection between an action and the take of migratory birds. The MBTA’s prohibitions do not apply to “indirect” take, such as take caused by the long-term effects of habitat modification.
Finally, the accompanying new section of the FWS Service Manual provides guidance regarding what types of situations would potentially be subject to prosecution—namely, projects in which the proponents either do not cooperate or do not attempt to avoid impacts to migratory birds.
The scope of the MBTA’s take prohibition has become a key issue for a number of industries with activities that could result in the take of migratory birds, including energy, real estate development, transportation, forestry and others, both in the criminal and civil context. The solicitor’s opinion and accompanying new guidelines make DOI’s stance on the issue very clear. However, it is important to note that while DOI’s interpretation sets the policy for the department, it has no bearing on the federal caselaw to the contrary. Because neither the solicitor’s opinion nor the accompanying new section of the FWS Manual is a final agency action, it likely would not be entitled to Chevron deference. At most, it could be accorded Skidmore deference. At this time, therefore, DOI’s opinion does not affect the ongoing circuit split regarding whether the MBTA prohibits incidental take.
The solicitor’s opinion is consistent with the department’s view on incidental take for the past several decades; therefore, the substance is not new, although it has now been memorialized in detail in the opinion. FWS continues to follow an approach of encouraging proactive measures to avoid and minimize any take through the development of Bird and Bat Conservation Strategy plans as a way to avoid an enforcement action.
 Under the Chevron standard, which is the most deferential, courts will defer to an agency interpretation unless it is unreasonable. Under the less deferential Skidmore standard, an agency interpretation may be entitled to deference depending on its persuasiveness.