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Freedom of Alaska

The Trump administration changes course on regulatory interpretations relating to the scope of protections for endangered and threatened species and migratory birds.

By Nikki Buffa, Jennifer K. Roy, Lucas I. Quass, and Samantha K. Seikkula

Federal agencies took steps in April 2025 to narrow (i) habitat protections for federally listed endangered or threatened species under the Endangered Species Act (ESA) and (ii) the scope of liability for incidental take of migratory birds under the Migratory Bird Treaty…

By Sara Orr, Jennifer Roy and Francesca Bochner

On May 2, 2016, the US Fish & Wildlife Service (FWS) announced its second attempt to revise its rules authorizing eagle take permits under the Bald and Golden Eagle Protection Act (Eagle Act). The rule would extend the maximum eagle take permit term from 5 to 30 years to better correspond to the typical lifetime of major projects. The proposed revisions are intended to provide clarity on eagle permit regulation, improve permit implementation and increase regulatory compliance while providing strong protection for eagles. Public comments are due by July 5, 2016.

The Bald and Golden Eagle Act

The Eagle Act (16 USC 668-668d) was enacted in 1940 to prohibit the take of bald and golden eagles, except pursuant to federal regulations. The Eagle Act allows the Secretary of the Interior to issue regulations authorizing “take” of eagles for various purposes, with potentially significant fines for violations. Such take must be “compatible with the preservation of bald or golden eagles.” The current “preservation standard” is that the take must be “consistent with the goal of maintaining stable or increasing breeding populations.”

By Sara Orr and Jennifer Roy

On September 4, 2015, the US Court of Appeals for the Fifth Circuit issued a ruling in United States v. CITGO that a “taking” subject to prosecution under the Migratory Bird Treaty Act (MBTA) does not include the unintentional take of migratory birds. Reversing a district court decision and joining the position of the Eighth and Ninth Circuits, the appellate court held that the MBTA’s take prohibition is limited to “deliberate acts done directly and intentionally to migratory birds,” effectively exempting take that occurs incidental to otherwise lawful activities. While such incidental take may still be subject to prosecution under other federal laws protecting birds, such as the Bald and Golden Protection Act or the Endangered Species Act, the Fifth Circuit concluded that unintentional acts are not subject to the strict liability penalties of the MBTA. This ruling may provide additional assurances to a wide variety of industries with operations in the Fifth, Eighth and Ninth Circuits that have the potential to impact migratory birds, particularly oil and gas, wind, and solar energy. Given the divide among the courts and the importance of the issue, however, it is possible that the U.S. Supreme Court will take up the issue in the future.

The Migratory Bird Treaty Act

Congress enacted the MBTA in 1918 to implement a treaty between the United States and Great Britain. The general policy of the MBTA is to provide for the “preservation, distribution, introduction, and restoration of game birds and other wild birds.” The MBTA prohibits the take of all listed 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.

Authors: Sara Orr and Jennifer Roy

On August 11, 2015, the US District Court for the Northern District of California remanded a US Fish & Wildlife Service’s (FWS) 2013 final rule that had extended the maximum duration of eagle take programmatic permits under the Bald and Golden Eagle Protection Act (Eagle Act) from 5 years to 30 years.[i] FWS promulgated the rule (an amendment to the existing eagle permitting program established in 2009) to align the duration of programmatic eagle take permits with the typical lifetime of renewable energy projects, such as wind farms. Bird protection groups then challenged the rule, alleging the FWS did not properly comply with the procedural requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act. While the district court recognized that “promoting renewable energy projects may well by a ‘worthy goal,” the court held that FWS did not meet its procedural obligations under NEPA and remanded the matter back to the FWS to complete the necessary environmental review. As a result of the Court’s decision, 30-year incidental take permits are no longer available to project developers under the Eagle Act until the FWS completes its environmental review and reissues the rule.

The Eagle Act’s Regulatory Scheme

The Eagle Act prohibits a person from taking, possessing, purchasing, bartering, offering to sell, transporting, exporting or importing bald or golden eagles, whether the eagle is alive or dead, or “any part, nest, or egg” of an eagle without a permit.[ii] Under the Eagle Act, take includes to “pursue, shoot, shoot at, poison, wound, kill, capture, collect, molest, or disturb.”[iii] “Disturb” is further defined broadly by regulation, including agitating or bothering a bald or golden eagle “to a degree that causes, or is likely to cause injury to an eagle, a decrease in its productivity, or nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.”[iv] The federal government can assess both civil and criminal penalties for unauthorized take of bald and golden eagles.[v]

By Benjamin Hanelin, Jennifer Roy, and Natalie Rogers

On May 26, 2015, the US Fish and Wildlife Service (FWS) announced its intent to prepare a programmatic environmental impact statement (PEIS) to evaluate the potential impacts of permits authorizing the incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA).  The PEIS will address, among other things, the potential environmental impacts of a permit system for regulating and authorizing incidental take, and potential mitigation requirements.  The…