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.

The legal position reflected in the new Solicitor’s Opinion follows the Fifth, Eighth, and Ninth Circuits in concluding that “the MBTA’s prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same applies only . . . to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.” The new Solicitor’s Opinion also emphasizes the uncertainty that previous interpretations of the MBTA and the exercise of prosecutorial discretion created for industry, noting that “[i]nterpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions.” Accordingly, the new Solicitor’s Opinion signals that the federal government is far less likely to prosecute the killing of migratory birds incidental to otherwise lawful industry operations as criminal violations of the MBTA.

The scope of industries potentially affected by the new Solicitor’s Opinion is broad. The Solicitor’s Opinion notes that the MBTA protects “nearly every bird species in North America” and specifically lists buildings, vehicles, electrical lines, communications towers, electrocutions, oil pits, and wind turbines as potential “human-caused threats” to birds. The new Solicitor’s Opinion states that “[i]nterpreting the MBTA to apply strict criminal liability to any instance where a migratory bird is killed as a result of these ‘human-causes threats’” would “lead to absurd results” because it would otherwise “cast[] an astoundingly large net that potentially transforms the vast majority of average Americans into criminals.” As a result, the new Solicitor’s Opinion finds that the MBTA should be interpreted narrowly to avoid constitutional doubt, and that reliance on prosecutorial discretion alone is insufficient to cure an otherwise vague law.

Whether this Solicitor’s Opinion ultimately resolves or intensifies the ongoing uncertainty surrounding the MBTA regarding incidental take over the longer term remains unclear. However, it signals this administration’s position to provide some relief and to not prosecute companies under federal law who incidentally take birds. Given the Interior Department’s legal reversal and the existing split in the federal circuit courts of appeal about the applicability of the MBTA’s prohibition on incidental take, further legal developments on this issue are sure to arise. Indeed, recently, former Interior Department officials from seven prior administrations objected to this development, and at least one environmental group has said it would sue. Affected industries would be prudent to continue to follow legal developments, both with respect to the MBTA and other federal and state laws protecting certain migratory birds. Latham is closely following these issues, and will continue to provide updates on this blog.