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  • MBTA incidental take situation worsens; formal regulation to be proposed

    Fern Davies
    • Author: Ornithological Council

      UPDATE JULY 2019:

      The draft regulation that would codify the "Jorjani M-Opinion" stating that the MBTA dos not cover incidental take was apparently been circulated in early July to other federal agencies for comment. This is a standard process for pending regulations pertaining to matters that impact those agencies, or for which those agencies have shared legal authority (which is the case with most natural resource laws). The agencies were given only 15 days to respond, which is an incredibly short period of time - far shorter than is the norm.

      It is not known if the draft was also circulated to the state agencies (also standard practice; the states share responsibility and authority for protection of migratory birds). The OC is attempting to ascertain if the state agencies have been asked for their input yet. It is anticipated that the USFWS will face substantial push-back from the states, or many of them. In fact, one of the two lawsuits against the underlying M-Opinion was filed by a group of State Attorneys General. Both lawsuits - the case filed by the states and another filed by a group of NGOs - are still pending in the Southern District of New York. It was thought that the USFWS would not publish the proposed regulation for public comment until that case was resolved because if the decision is unfavorable to the USFWS (i.e., strikes down the M-Opinion), the new regulation would either be moot in its entirety or perhaps have to be re-written in accordance with the court decision.







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    Does the Migratory Bird Treaty Act  (MBTA). include the take of protected bird species as a result of otherwise lawful activity? No one knows. The statute is silent on the subject. The proponents of this 100-year old law were concerned about indiscriminate slaughter of birds for their plumes, used by the millinery trade. They were also concerned about harvest limits on game birds. In short, they were not thinking about incidental take.

    In the early 1990s, the U.S. Fish and Wildlife Service (USFWS) became concerned about the impact of incidental take on migratory birds but knowing that there was legal uncertainty, never moved to formally regulate incidental take. Instead, the USFWS engaged with certain industries to encourage them to adopt practices to reduce the extent of incidental take. The first of these efforts was the Avian Power Line Interaction Committee. Together, the industry and the USFWS compiled a set of best practices and the USFWS gave industry members time to implement those practices. Only if a company refused to implement those practices would the USFWS sue under the MBTA. The companies, for their part, came to the table because they faced the same uncertainty - what if the courts would hold them liable for incidental take?

    Over time, some industries were more cooperative than others. In some cases, the USFWS imposed penalties for incidental take and these cases reached the federal courts. Some of the courts decided that the MBTA covers incidental take. Some courts decided to the contrary. And there things stand, ready for a Supreme Court show-down. (Editorial note: yes, you may and probably should take a drink or two as the enormity of that inevitable train wreck crosses your mind).

    During the second Obama term, some in DOI made an attempt to incorporate the incidental take policy into formal regulation, going so far as to issue a notice of intent to publish a programmatic environmental impact statement and a regulation defining take to include incidental take. However, the White House apparently did not support this effort and it never came to fruition.

    At the same time, some industries began pushing back. In particular, Duke Energy, which had been fined $1million and placed on five years probation for killing birds at a wind energy facility, persuaded Congress to include in an appropriations bill a provision to prohibit the USFWS from prosecuting incidental take. Worse, the company and its industry allies succeeded in persuading a South Carolina congressman to sponsor a free-standing bill to amend the MBTA to exclude incidental take from criminal liability (both efforts failed).

    Meanwhile, back at the Department of the Interior, the Office of the Solicitor was persuaded at the 11 & 11/12th hour of the Obama Administration  (10 January  2017) to issue an "M-Opinion" stating that the MBTA does cover incidental take. Which the new Administration promptly withdrew (20 January 2017).  And then on 22 December 2017 issued a new M-Opinion stating that the MBTA dos not cover incidental take. Several conservation organizations and eight states filed suit challenging that last M-Opinion. (all are still in the earliest stages; watch for updates).

    And now it has come to this. For months, it has been rumored that the USFWS would propose a formal regulation stating that the MBTA does not cover incidental take. A regulation is much, much hard to reverse than is an M-Opinion.

    Well, rumor no more.

    The USFWS is about to propose a formal regulation to codify its current position that incidental take is not covered. In the fall semi-annual regulatory agenda published on 17 October 2018, the USFWS list of regulatory matters included this entry:

    The U.S. Fish and Wildlife Service proposes to establish regulations that define the scope of the Migratory Bird Treaty Act (MBTA or Act) as it applies to conduct resulting in the injury or death of migratory birds protected by the Act.  This rule would codify the legal opinion in the Department of the Interior Solicitor’s Opinion M-37050 that incidental take resulting from an otherwise lawful activity is not prohibited under the MBTA. 

    Worser and worser.

    The USFWS had a flabby carrot and a very small stick to work with, given the legal uncertainty about incidental take, but the way things are going, it is likely to lose even that leverage. Permanently.



    Edited by Ellen Paul

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