Author: Ornithological Council
Update: Read the comments filed by the Ornithological Council.
Today, the U.S. Fish and Wildlife Service (Service) is proposing a rule that defines the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders.
This proposed rule clarifies that the scope of the MBTA only extends to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act.
Background: the USFWS under this Administration developed a policy known as an M-Opinion, which is internal agency policy, stating that the law does not prohibit incidental take of migratory bird species protected under the Migratory Bird Treaty Act.
The policy has been in litigation in the U.S. District Court for the Southern District of New York for some time and is still pending. It is unlikely to be adjudicated before June of this year and any decision will be appealed.
Throughout this time, the USFWS has stated that it intends to promulgate a formal regulation. Doing so would obviate one of the key aspects of the legal challenge - that there was no opportunity for public input. Under the Administrative Procedure Act, public input is required when a formal regulation is proposed.
