Proof in Trial: Appellate Edition: Stand Up for California et al. v. U.S. Department of the Interior et al.
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
In May, the U.S. Fish and Wildlife Service (“Service”) announced a proposed rule revoking the Trump administration’s final rule on incidental take under the Migratory Bird Treaty Act (“MBTA”). In the January 7, 2021 final...more
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
In a proposed rule published May 7, 2021, the Biden Administration seeks to withdraw the Trump Administration’s Migratory Bird Treaty Act (MBTA) liability rule. The MBTA liability rule was published as a final rule on January...more
The regulation of protected wildlife is likely to undergo a seismic shift as a result of the change in administrations. Whereas the Trump Administration took several actions to narrow the reach of wildlife protection...more
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
DOJ to let companies pay for environmental projects again to reduce fines - The Hill – February 5 - The Department of Justice (DOJ) has eliminated nine Trump-era directives on environmental law enforcement, including...more
On January 7, the Department of the Interior (“DOI”) published a final rule codifying its previously announced interpretation that the Migratory Bird Treaty Act (“MBTA”) applies only to intentional acts directed at migratory...more
One thing is certain about 2021 – environmental and natural resources-related litigation against the federal government will continue apace and it will impact a range of private projects that require federal authorization of...more
The Trump Administration’s efforts to clarify the scope of liability under the Migratory Bird Treaty Act (MBTA) suffered a setback when the U.S. District Court for the Southern District of New York concluded that the statute...more
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...more
The Migratory Bird Treaty Act (“MBTA”) was first adopted in 1918, and for most of its existence the Department of the Interior (“DOI”) interpreted it to prohibit any taking or killing of migratory birds, intentional or not. ...more
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
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
DOI moves forward with plan to end wild bird protections - Bullet PBS – June 5 - The U.S. Department of the Interior moved forward last Friday with plans to end the government’s decades-long practice of treating...more
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
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
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
In January 2017, the outgoing Solicitor of the Department of the Interior issued a memorandum which reaffirmed the Department’s “long-standing interpretation of the Migratory Bird Treaty Act that the MBTA prohibits the...more
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
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
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
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
I. Background - Just over a month ago, on December 22, 2017, the United States Solicitor’s office issued a Memorandum Opinion (referred to herein as the “M-Opinion”) reversing the Obama-era policy of interpreting the...more
Reversing a long-standing federal legal position, the US Interior Department recently stated that the Migratory Bird Treaty Act (MBTA) does not impose liability for the incidental take of protected birds. The 41-page...more