News & Analysis as of

Department of the Interior Migratory Bird Treaty Act (MBTA)

Beveridge & Diamond PC

Incidental Take of Migratory Birds Once Again a Federal Crime; FWS Considering New Permitting Program

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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

Stoel Rives - Renewable + Law

Biden Administration Proposes Rollback of Trump Administration Migratory Bird Rule

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

Locke Lord LLP

Fish and Wildlife Service Proposes to Restore Incidental Take Prohibition Under Migratory Bird ‎Treaty Act – What You Need to Know

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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

Beveridge & Diamond PC

Department of the Interior Seeks to Withdraw Migratory Bird Treaty Act Liability Rule

Beveridge & Diamond PC on

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

Holland & Hart LLP

Wildlife Roundup

Holland & Hart LLP on

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

Nossaman LLP

Department of Interior Takes Steps Toward Reversal of Position on Migratory Birds Protections

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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

Allen Matkins

California Environmental Law & Policy Update - February 2021

Allen Matkins on

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

Locke Lord LLP

The Regulatory Resurrection of M-37050:‎ Interior Rule Limits the MBTA Again, But Likely Not for Long

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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

Bracewell LLP

Changes to Expect in Environmental Litigation Under Biden

Bracewell LLP on

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

Beveridge & Diamond PC

Federal Court Rejects Interior Department Interpretation Limiting Migratory Bird Treaty Act Liability For Intentional Acts

Beveridge & Diamond PC on

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

Brownstein Hyatt Farber Schreck

Court Rejects Trump Administration’s Migratory Bird Treaty Act Interpretation

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

Locke Lord LLP

Trump Administration’s MBTA M-Opinion Vacated: What You Need to Know

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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

Allen Matkins

California Environmental Law & Policy Update - August 2020 #2

Allen Matkins on

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

Nossaman LLP

Court Reignites Migratory Bird Treaty Act Question

Nossaman LLP on

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

Allen Matkins

California Environmental Law & Policy Update - June 2020 #2

Allen Matkins on

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

(ACOEL) | American College of Environmental...

Migratory Bird Treaty Act -- Scope of Act Rule

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

Perkins Coie

Bird Is the Word: US Fish & Wildlife Service Proposes Narrow Interpretation of Migratory Bird Treaty Act

Perkins Coie on

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

Nossaman LLP

USFWS proposes to codify Trump Administration position on MBTA

Nossaman LLP on

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

Pillsbury - Gravel2Gavel Construction & Real...

Federal District Court Rejects Government’s Motions to Dismiss Challenges to Interior Department’s New Interpretation of MBTA

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

Perkins Coie

California Affirms State Law Prohibition of Incidental Take of Migratory Birds Despite Contrary Federal Stance

Perkins Coie on

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

Mitchell, Williams, Selig, Gates & Woodyard,...

Migratory Bird Treaty Act: Environmental Organizations File Lawsuit Challenging Department of Interior Solicitor's Interpretive...

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

Akin Gump Strauss Hauer & Feld LLP

Fish and Wildlife Service Doubles Down on Department of Interior Opinion on Migratory Bird Treaty Act (MBTA)

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

Eversheds Sutherland (US) LLP

Despite DOI policy reversal on incidental takes, project developers still face risk of criminal liability under MBTA

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

Clark Hill PLC

Bye, Bye Birdie: Summary and Analysis of the Trump Administration's Recent Policy Change of the Migratory Bird Treaty Act

Clark Hill PLC on

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

Latham & Watkins LLP

Interior Department Excludes Incidental Take Liability Under the Migratory Bird Treaty Act

Latham & Watkins LLP on

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

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