By Janice Schneider, Sara Orr, Jennifer Roy and James Erselius
Reversing a long-standing federal legal position, the US Interior Department recently stated that the Migratory Bird Treaty Act (MBTA) does not impose liability for the incidental take of protected birds. The 41-page Solicitor’s Opinion (number M-37050) withdraws and replaces a prior Solicitor’s Opinion (number M-37041), issued during the Obama administration. The prior Solicitor’s Opinion had interpreted the MBTA to prohibit “incidental take,” and concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental take and killing.” The new legal position means that the Trump administration will not consider the non-directed and unintentional death of birds by energy companies and other businesses in the course of their otherwise lawful activities to be a crime under the MBTA.
The MBTA, enacted in 1918, prohibits the take of over 1,000 species of birds, and the take of any migratory bird’s parts, nest, or eggs without a permit. The regulations define take as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt any of these acts. Violations of the MBTA are criminal offenses, and courts have held that the MBTA imposes strict liability, regardless of intent. Courts have debated, however, whether the scope of strict liability under the MBTA extends to the incidental take of migratory birds resulting from otherwise lawful activities. As discussed in a previous post, the Fifth Circuit joined courts in the Eighth and Ninth Circuits in ruling that the MBTA does not prohibit incidental take. In contrast, other circuits, such as the Second and Tenth, have extended liability under the MBTA to incidental take in at least some instances. Continue Reading