Biden Administration Signals a Changed Stance on “Takes” Under the Migratory Bird Treaty Act Is Forthcoming

May 27 2021 | Committees

On May 7, 2021, the United States Fish and Wildlife Service (“FWS”) published a proposed rule to revoke a rule promulgated by the Trump Administration regarding “incidental takes” under the Migratory Bird Treaty Act (“MBTA”). This is the latest move by the new administration to clarify what constitutes a “take” under the MBTA.

The MBTA makes it illegal to take, kill, possess, transport, or import migratory birds, or their eggs, parts, or nests without a permit. 16 U.S.C. § 703. A take is a misdemeanor criminal violation with a maximum penalty of six months in prison and a $15,000 fine. However, there are different interpretations of whether “takes” are limited to direct and intentional actions or whether takes can include “incidental takes”—takes that directly and foreseeably resulted from, but were not the purpose of, an activity.

Neither the regulations nor the statute directly address whether “takes” include “incidental takes,” and federal circuit courts that have addressed the issue are split. Notably, the Fifth Circuit has concluded that the MBTA “only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.” United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015).

What constitutes a “take” has very real implications for various Louisiana industries (such as petroleum refineries, chemical plants, and other energy and infrastructure projects, including renewable energy projects). If the proposed rule is finalized, it is possible that the FWS could take criminal enforcement action against individuals and businesses whose actions harm migratory birds, even if that harm was unintentional, but foreseeable.

Brief History of Changing Policies at the Department of Interior and FWS

In January 2017, in the final days of the Obama administration, the Department of Interior (“DOI”) Solicitor issued an opinion (M-37041) that the MBTA “take” provisions included “incidental takes.” Opinions issued by the DOI Solicitor are binding on the Department, which includes the FWS. In the opinion, the Solicitor defined an incidental take as a “take of migratory birds that directly and foreseeably results from, but is not the purpose of, an activity.” Opinion M-37041 supported this position by relying on the MBTA’s purpose and structure and the historical practice of how the FWS applied the MBTA.

Shortly thereafter, Opinion M-37041 was withdrawn by the Trump administration, and in December 2017, the DOI Solicitor issued an opinion (M-37050) removing “incidental takes” from the purview of the MBTA.  In its opinion, the Solicitor explained that the MBTA “applies only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.” This analysis was largely based on a stricter construction of the statute and the ruling in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015). 

Current Regulatory Status and Proposed Changes

On January 7, 2021, in the final days of the Trump administration, the FWS published a final rule adopting Opinion M-37050 “as a matter of law and policy” (the “January 7, 2021 Rule”). 86 Fed. Reg. 1134, published Jan. 7, 2021. The rule was set to go into effect on February 8, 2021.  On February 5, 2021, the Biden administration delayed the effective date of the January 7, 2021 Rule until March 8, 2021, and solicited comments on whether there should be a further delay of the effective date. The FWS decided not to further delay the effective date, and the January 7, 2021 Rule adopting Opinion M-37050 went into effect on March 8, 2021. Therefore, currently, the FWS cannot pursue MBTA claims based on incidental takes.

However, the January 7, 2021 Rule is likely to be short lived. On May 7, 2021, the FWS published a proposed rule to revoke the January 7, 2021 Rule.  FWS’s stated basis for revoking the January 7, 2021 Rule included the following:

  • The January 7, 2021 Rule departed from a longstanding historical agency practice regarding incidental takes;
  • Opinion M-37050 has been invalidated by a federal district court, and several federal courts have upheld that incidental takes are actionable under the MBTA;
  • The January 7, 2021 Rule is undermined by certain legislation which created an exception for military incidental takes under the MBTA; and
  • The January 7, 2021 Rule undermines the treaties which the MBTA was passed to implement, specifically the Convention with Canada calls on the parties to protect “non-targeted birds,” and the Conventions with Japan and Russia call on the parties to prevent damage to birds from pollution.

The FWS is seeking comments on its proposed revocation of the January 7, 2021 Rule through June 7, 2021.  Thereafter, the FWS will determine whether to issue a final rule revoking the January 7, 2021 Rule.  Until the January 7, 2021 Rule is revoked through formal rulemaking, it remains effective, and the FWS is prevented from pursuing MBTA claims based on incidental takes.  However, if the January 7, 2021 Rule is revoked, it seems likely that the DOI Solicitor may issue an opinion similar to M-37041, in which “takes” include “incidental takes.” The FWS may also pursue formal rulemaking to memorialize this more expansive interpretation of take.

As the FWS’s interpretation of “take” continues to evolve, it is possible that legal challenges could result in federal courts, and perhaps the U.S. Supreme Court providing further guidance regarding what interpretation is allowable.


Emily von Qualen
Liskow & Lewis

Written on behalf of the Environmental Law Committee.

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