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District court judge strikes down MBTA incidental take memo

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This news and analysis are provided by the Ornithological Council, a consortium supported by 10 ornithological societies. Join or renew your membership in your ornithological society if you value the services these societies provide to you, including OrnithologyExchange and the Ornithological Council.

In late 2017, the Department of the Interior’s Office of the Solicitor issued a new interpretation of the Migratory Bird Treaty Act (“the M Opinion”), which stated that the Act would no longer be applied to incidental take.

In May 2018, the Natural Resources Defense Council and the National Audubon Society, along with other environmental organizations, filed a lawsuit challenging the M Opinion. Later that year, eight States filed a similar lawsuit. These actions were consolidated into the one, which argued that the new interpretation of the M Opinion was contrary to the MBTA 

Yesterday, the district court agreed, finding that the M opinion “is contrary to the plain meaning of the MBTA and therefore must be vacated.” It is important to note that this decision only affects the M Opinion and not the proposed rule that Interior is in the process of finalizing. Also, the federal appeals courts remain split over whether incidental take is covered by the MBTA. 

BACKGROUND: Until this administration, the Migratory Bird Treaty Act was interpreted to cover both intentional and unintentional take (harm or killing) of species covered by the Act. 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 Act. In January, it released a regulatory proposal to codify that interpretation and in June it released the draft EIS for public comment. 

Read the Ornithological Council’s comments on the scoping notice and the draft environmental impact statement.


UPDATE: E&E News reported on Oct. 9 that the administration will appeal the district court decision. 

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