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 application of the MBTA to unintentional acts has historically resulted in enforcement against individuals and businesses, especially the energy sector. The October 2021 final rule replaces and overrides a Jan. 7, 2021, rule that concluded the MBTA does not prohibit incidental take. 1
The FWS reasoned that the MBTA provision making it “unlawful at any time, by any means, or in any manner, to pursue, hunt, take, capture, kill” migratory birds encompasses actions that are not deliberate, which indicates Congress intended the MBTA to apply to incidental takes. In response to concerns that FWS’s current interpretation results in implementing the MBTA in a vague and overbroad manner violating the constitutional right to due process, FWS committed to adopting policies and regulations on incidental take. 2
FWS also issued Director’s Order No. 225 clarifying its current enforcement position. Director’s Order No. 225 advises that FWS interprets the MBTA to prohibit incidental take of migratory birds and that it will focus its enforcement efforts on activities “that both foreseeably cause incidental take and where the proponent fails to implement known beneficial practices to avoid or minimize incidental take.” It further clarifies that the following types of conduct are not an enforcement priority: (1) a member of the general public conducting otherwise legal activities that incidentally takes migratory birds, (2) a federal agency conducting activities in accordance with a signed memorandum of understanding with FWS developed under Executive Order 13186 for the conservation of migratory birds, and (3) an entity conducting activities in accordance with applicable beneficial practices for avoiding and minimizing incidental take.
FWS also issued an advance notice of proposed rulemaking (“ANPR”) advising that it intends to gather information necessary to develop proposed regulations to authorize the incidental take of migratory birds under prescribed conditions and prepare a draft environmental review pursuant to the National Environmental Policy Act. In the ANPR, FWS is considering authorizing incidental take using three primary mechanisms: exceptions to the MBTA’s prohibition on incidental take, general permits for certain activity types and specific or individual permits. The FWS is seeking comments on when and how it should apply these three mechanisms to different types of activities.
As it did pre-2017, FWS will resume enforcement for incidental takes under the MBTA when entities do not follow applicable beneficial practices for avoiding and minimizing such impacts. Affected industries should consider submitting any relevant information and comments to FWS pursuant to the ANPR, such as recommendations on best practices that would eliminate or reduce incidental take of species for their types of operations, and monitor the rulemaking to determine how FWS intends to amend its regulations with regard to incidental take. Brownstein attorneys and policy advisors have substantial experience relating to the MBTA and are available to develop strategies to address the potential impact of these developments.
1 FWS’s Jan. 7, 2021, rule was based on the “Jorjani Opinion.” As we described in a previous client alert, Judge Valerie Caproni of the U.S. District Court for the Southern District of New York vacated the Jorjani Opinion in August 2020. In reaching this conclusion, the court noted 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.
2 FWS also endorsed Judge Caproni’s reasoning when vacating the Jorjani Opinion and further explained why it disagreed with United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), the only federal appeals court to expressly state the MBTA does not include incidental take.