California Migratory Bird Protection Act

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]