Update on MBTA incidental take itigation

[Fern Davies]

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On 24 May 2018, the National Audubon Society, Center for Biological Diversity, Defenders of Wildlife, and American Bird Conservancy filed suit against the Dept. of the Interior challenging as unlawful and arbitrary and capricious the December 22, 2017 Solicitor’s Memorandum M-37050, which was issued by the office of the Solicitor of the Department of the Interior (“DOI”) and reverses Defendants DOI’s and the U.S. Fish and Wildlife Service’s (“FWS” or “Service”) longstanding interpretation and implementation of the Migratory BirdTreaty Act of 1918, 16 U.S.C. § 703(a) (“MBTA” or “Act”). A copy of the lawsuit is attached.

STATUS: on 13 July 2018, the court held a pretrial conference. At that conference, the government was ordered to submit a brief on its motion to dismiss the litigation ( as described in the attached letter notifying the court that such motions would be filed) no later than 17 August 2018. The plaintiffs were ordered to submit their separate reply briefs by 17 October 2018 and their joint reply brief no later than 20 November 2018.

In addition, there is an earlier-filed case brought by the Natural Resources Defense Council and the National Wildlife Federation (Civil 1:18-cv-4596). The court has not yet consolidated the two cases but is likely to do so if the two cases survive the motion to dismiss.

It is not known if the court will decide the motion on the briefs or if oral argument will be heard.

 

IncidentalTakeComplaintMay18.pdf

IncidentalTakeComplaintLetterResponse.pdf

[Fern Davies]

UPDATE 11 Feb 2019:

The government's brief supporting its motion to dismiss the case was to have been filed by 22 Feb 2019. However, on 3 Jan 2019, the court ordered that the Government's reply in support of its motion to dismiss, however, remains STAYED consistent with the Chief Judge's order, unless funding was restored to the Department of Justice by January11, 2019. If funding is restored by January 11, 2019, then the Government's reply brief remains due on February 22, 2019.

Of course, funding was not restored by 11 Jan 2019.

The court further ordered that if funding for the Department of Justice was restored after January 11,2019 (which it was) then the Government's reply brief will be due seven weeks after the funding is restored. As funding was restored on on 25 Jan 2019, the government's reply brief would be due on or about 18 March.

It remains to be see how a second shutdown would affect this schedule, but presumably, the time for the reply brief would again be stayed and the remaining four weeks would begin to run when the second shutdown ends.

 

[Fern Davies]

UPDATE 1 APR 2019

The government has now filed its reply brief responding to the plaintiffs' (several states, in one case, and several conservation organizations in the other case) brief opposing the government's motion to dismiss the case.

No hearing date has been set; it is possible that the court (the U.S. District Court for the Southern District of New York) will decide the motions without oral arguments. If the cases survive the government's motion to dismiss, the case will go forward in the U.S. District Court. If not, it would be up to the plaintiffs to file an appeal in the U.S. Circuit Court.

[Melinda Lowe]

Are there any new updates on the MBTA litigation?

[Leesia Marshall]

Hello Ellen, Where can I find the literature for this topic? Leesia  

[Fern Davies]

Melinda - no, I checked just yesterday. Still no hearing scheduled or decision issued.

[Fern Davies]

21 hours ago, Leesia Marshall said:

Hello Ellen, Where can I find the literature for this topic? Leesia  

The two complaints are attached to the original post. The M-Opinion to which they are objecting is linked in that same post. What other literature are you looking for?

[Fern Davies]

UPDATE JULY 15: The court asked the parties to consider having the three cases consolidated and "The parties in all three actions have conferred, and all parties consent to the consolidation of the three cases, with two caveats. First, the Audubon Plaintiffs consent to consolidation with the understanding that it would not prejudice their ability to litigate the NEPA and notice and comment claims asserted in their complaint but not in the NRDC Action or the States’ Action. Second, plaintiffs in each of the three cases request that they be permitted to continue to file separate briefs if there is further motion practice in the consolidated proceeding. Defendants do not object to the plaintiffs’ requests."

 

[Fern Davies]

UPDATE 6 AUGUST 2019: THE LAWSUIT HAS SURVIVED THE GOVERNMENT'S MOTION TO DISMISS, AT LEAST IN PART.

In essence, the Court ruled that the States (the two cases were consolidated; the plaintiffs are now both state governments and several NGOs) have standing to pursue the case in court because the DOI M-Opinion excluding liability for incidental take creates a  "substantial risk that migratory birds owned by the States will be killed by private actors." Since the state owns all wildlife except privately owned wildlife, the state would suffer a loss. In other words, there is a potential of harm to a protectable interest, and that is a legal basis for standing. "That substantial risk of injury to a State’s proprietary interest constitutes injury in fact."

The Court also ruled that the National Audubon Society's claim could continue, as it “has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

However, one legal aspect of the case was rejected by the Court. National Audubon had asserted that the M-Opinion was invalid because the DOI had not complied with the notice-and-comment requirements of the Administrative Procedures Act (APA). The Court noted that the applies only to actual rulemakings and not to interpretive decisions and that the M-Opinion is an interpretive decision.

The Court did rule that the M-Opinion is subject to the requirements of the National Environmental Policy Act and presumably, will, as the case proceeds, enjoin implementation of the M-Opinion until the DOI complies with NEPA. Which, in essence, could be game over in that NEPA compliance can be a lengthy process, often resulting in additional litigation. The clock could run out on this Administration if....2020.

N.B. That the actual M-Opinion may not go into force is not necessarily going to change the ultimate outcome. The fact is that the government has prosecutorial discretion, meaning it can determine which cases, if any, it wants to prosecute. It is nearly impossible to force the government to prosecute. In fact, there was never really a need for this M-Opinion to have been issued in the first place, except as a sop to industry, because DOI and DOJ could merely have decided not to prosecute...and they still can do just that.

 

RulingMotionDismissJuly31.pdf

[Fern Davies]

Update 10-16-19: After the Dept of the Interior (DOI) lost its motion to dismiss, the Court gave DOI until 9-6-19 to file an answer to the original complaint (lawsuit). DOI filed that response (appended to this message).

The Court also ordered DOI to produce the "administrative record" which is the documentation of DOI's decision-making process by 9-20. It is not apparent from the online records available as of this date that DOI has done so.

DOI-Answer-10-6.pdf

[Fern Davies]

The Court has now established a procedural schedule for the case. The various plaintiffs (several states, several conservation organizations) are  planning to file a motion for summary judgment, which is a procedure that asks the Court to find that there are no material disputes of fact or law and that as a matter of law, on the existing facts, they are entitled to prevail. The deadline for that filing is 17 Jan 2020.  The deadline for DOI's cross-motion for summary judgment is 2 March 2020. The deadline for the briefs in support of the motions is reply is 1 April 2020 and 1 May 2020 for the plaintiffs and defendants, respectively. Therefore, the Court is unlikely to rule on the case prior to 1 June 2020.

Meanwhile, the USFWS has yet to publish the proposed rule that would formalize the Jorjani memo on incidental take.