A new draft environmental impact statement on the scope of liability under the MBTA available for public comment.

By Janice M. Schneider, Taiga Takahashi, and Julie Miles

The US Fish and Wildlife Service (FWS) recently took another step toward narrowing its interpretation of liability under the Migratory Bird Treaty Act (MBTA) by issuing a draft environmental impact statement (DEIS). MBTA regulations currently protect 1,093 species of migratory birds. (See 50 CFR §10.13 for the complete list.) Notice of the public comment period in connection with the DEIS, which closes on July 20, 2020, was published in the Federal Register.

The DEIS preferred alternative would exclude incidental take of birds from the scope of liability under the MBTA, consistent with the FWS proposed rule published earlier this year. The issue of whether incidental take of birds is covered by the MBTA has long been a contentious one. The MBTA imposes strict criminal liability for taking protected birds, which can occur in the ordinary operations of a wide variety of industries and activities. For example, investigations by the federal government have included electric utilities, oil and gas, communication towers, chemical spills, bridgework, artificial lighting, and renewable energy activities, among others.[1]

The thrust of the FWS proposed rule is to create more certainty and clarity for industry and other actors in light of the existing split in federal courts on how liability under the MBTA should be interpreted.[2] Currently, the scope of liability under the MBTA differs depending on the federal appellate circuit in which the violation occurs. Courts in six circuits, at either the district or appellate court levels, have adopted a narrow construction of “take,” limiting the scope of the MBTA to “deliberate acts done directly and intentionally to migratory birds.”[3] Two circuits have adopted broader constructions of “take” under the MBTA. The Tenth Circuit has adopted a proximate cause approach, under which companies may be held liable for incidental deaths of migratory birds if their actions “proximately caused” such deaths, for example, deaths of birds caught in devices that separate oil from water in oil-drilling operations.[4] The Second Circuit has held that companies may be liable for incidental takes under the MBTA if they engage in inherently dangerous activities that result in migratory bird deaths.[5] Four circuits have not yet squarely addressed this question.[6]

The FWS proposed rule would limit the scope of the MBTA’s provisions against take to intentional conduct. As explained by the FWS, “This proposed rule clarifies that the scope of the MBTA only extends to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act.” The DEIS evaluates the proposed rule and several alternatives, including ones that would interpret the MBTA to prohibit incidental take. The DEIS, however, did not carry forward the analysis of either a general permit program or an enforcement system to address gross negligence, instead concluding that such analyses would only be required if the FWS opted to move forward with promulgating regulations that define the scope of the MBTA to include incidental take, which is unlikely. The DEIS notes that selection of the preferred alternative would result in increased effects on migratory birds, as a result of decreased implementation of best management practices (BMPs) and other industry standards. Appendix A of the DEIS includes available best practices for power lines, wind energy, buildings and glass, communication towers, oil and gas, open pipes, longline fisheries, vehicles, and aircraft to minimize potential impacts to migratory birds.

The proposed rule and preferred alternative in the DEIS are consistent with a US Department of the Interior’s Solicitor’s Office opinion (M-37050) from December 2017, reasoning that the scope of liability under the MBTA did not reach unintentional acts when the underlying purpose of the activity is not to take birds, an approach to MBTA liability that Latham & Watkins discussed. M-37050 replaced an opinion issued on January 10, 2017, during the Obama Administration, which was suspended and withdrawn on February 6, 2017.

The withdrawn opinion, M-37041, took a broad construction of the MBTA, stating that its “broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.”[7] M-37041 adopted a view of the scope of the MBTA in alignment with the Tenth Circuit’s proximate cause approach, reasoning that “[l]iability under the MBTA … applies to ‘direct’ take where there is a close causal connection between an action and its effect of taking migratory birds.”[8]

The California legislature responded to the reversal of M-37041 by adopting the California Migratory Bird Protection Act (California MBPA) in 2019. The California MBPA adopts, as a floor for state regulations, protections for migratory nongame birds afforded by the federal rules and regulations in effect as of January 1, 2017. In short, the California MBPA effectively rejects changes to or interpretations of the federal rules and regulations implementing the MBTA adopted by the Trump Administration in that state.

Several bills related to the MBTA have been introduced in the current session of Congress, most notably the Migratory Bird Protection Act of 2020 (R. 5552). This bill, which has been introduced in the House of Representatives, would amend the MBTA to clarify that the prohibition against unauthorized taking of migratory birds includes incidental taking by commercial activities and would direct the FWS to adopt regulations accordingly. If passed, this bill would require the FWS to abandon the proposed regulatory approach to narrow the scope of the MBTA and return to the broader regulatory approach outlined in the withdrawn opinion, M-37041, that is still being followed in California.

Although the comment period on the proposed rule closed on March 19, 2020, the comment period on the DEIS is now open until July 20, 2020. The FWS will consider all substantive comments and will then prepare a final EIS, which will inform development of the final rule. The final EIS and rule are anticipated to be issued this fall. The current proposed rule implementing the MBTA and related information, including the DEIS, are available at Gov, Docket No. FWS–HQ–MB–2018–0090.

Endnotes

[1] US Fish and Wildlife Service, Draft Environmental Impact Statement – Regulations Governing Take of Migratory Birds, Table 2-1 Average Annual Number of Incidental Take Investigations (2010-2018), at 18.

[2] See also 85 Fed. Reg. 5.915.

[3] See, e.g., Latham & Watkins Clean Energy Law Report, Court Limits Migratory Bird Treaty Act Applicability to Incidental Take (Sept. 17, 2015).

[4] See, e.g., Latham & Watkins Clean Energy Law Report, Federal Court Clips Criminal Liability Under the Migratory Bird Treaty Act (Feb. 9, 2012).

[5] See id.

[6] See supra notes 3-5 and accompanying text.

[7] Office of the Solicitor, United States Department of the Interior, “M-37041,” at 2 (Jan. 10, 2017).

[8] Id.