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Eight states sue over Migratory Bird Treaty Act memo

Cara J

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Eight states filed suit on Sept. 5 in federal court against the Interior Department, asking the court to vacate last year’s opinion from Interior’s Office of Solicitor regarding the Migratory Bird Treaty Act. In the suit, New York, California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico and Oregon allege the opinion is inconsistent with the MBTA and decades of interpretation of the act by Interior and the U.S. Fish and Wildlife Service. The states argue that the memo narrows the scope of the act and harms the states’ interests. In December 2017, Interior’s Office of the Solicitor issued an opinion stating the MBTA does not apply to unintentional “take” of a protected bird. Before the opinion was issued, MBTA was interpreted to cover both intentional and unintentional take of migratory birds. Unintentional take can apply to activities such as wind energy development, traditional oil and gas development and power transmission, and this new opinion could shield energy companies and others from persecution. The memo argues that “the text, history and purpose of the MBTA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching,” and concludes that unintentional take of [...]

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