Migratory Bird Treaty 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]

By Christopher Garrett, Daniel Brunton and Taiga Takahashi

On June 6, 2016, in Backcountry Against Dumps et al. v. Jewell et al., the US Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court for the Southern District of California upholding federal approvals for the Tule Wind Project. The Court of Appeals found in favor of the Federal Government and Tule Wind LLC, rejecting claims the plaintiffs brought under the Administrative Procedure Act, National Environmental Policy Act (NEPA), Migratory Bird Treaty Act (Bird Act) and Bald and Golden Eagle Protection Act (Eagle Act).

As we have noted in previous reports, project challengers have increasingly alleged, in litigation, that the mere potential to incidentally affect migratory birds requires government agencies and/or project developers to obtain a permit under the Bird Act and the Eagle Act as a precondition to any regulatory approval for the project. The Court of Appeals, like the District Court, rejected this tactic.

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.

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

By Christopher W. Garrett, Daniel P. Brunton and Taiga Takahashi

On March 25, 2014, in The Protect Our Communities Foundation et al. v. Jewell et al. [Click here to view the opinion], the US District Court for the Southern District of California issued a decision on a challenge to the Tule Wind Project and found in favor of the Federal Government defendants and intervenor-defendant Tule Wind LLC, on all claims. The plaintiffs had alleged violations of the Administrative Procedure Act, National Environmental Policy Act (“NEPA”), Migratory Bird Treaty Act (“Bird Act”) and Bald and Golden Eagle Protection Act (“Eagle Act”).

By Christopher W. Garrett, Daniel P. Brunton and Taiga Takahashi

On March 14, 2014, in Public Employees for Environmental Responsibility et al. v. Beaudreu et al. [click here to view opinion], the US District Court for the District of Columbia issued a decision on multiple challenges to the Cape Wind Offshore Wind Farm based on alleged violations of federal laws, including the Administrative Procedure Act, the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Outer Continental Shelf Lands Act, the Coast Guard and Maritime Transportation Act of 2006, and the National Historic Preservation Act.[1]  The Court rejected all of the claims, except the Court granted summary judgment in favor of the plaintiffs on the Endangered Species Act claims, remanding the case to the US Fish and Wildlife Service and the National Marines Fisheries Service to make independent determinations regarding whether the feathering operational adjustment was a reasonable and prudent measure and to issue an incidental take statement for right whales, respectively.

By Christopher Garrett, Daniel Brunton, and Taiga Takahashi

On November 6, 2013, in The Protect Our Communities Foundation v. Salazar, the U.S. District Court for the Southern District of California rejected a challenge to the Ocotillo wind-energy project based on the National Environmental Policy Act and the Migratory Bird Treaty Act.

The Court’s holding on the MBTA is particularly important for project developers. The Ninth Circuit has previously held that the definition of ‘take’ in the MBTA—a criminal statute—is limited to the sort of conduct engaged in by hunters and poachers. Nonetheless, anti-development and anti-renewable-energy groups have increasingly challenged projects under the MBTA, claiming that projects with even the mere potential to kill migratory birds unintentionally need a permit to take birds before they can receive federal approvals.

By Buck B. Endemann and Taiga Takahashi

In a previous report, we discussed United States v. Brigham Oil & Gas, L.P.,[1] where the court dismissed several misdemeanor charges under the MBTA against three oil and gas companies that conducted drilling operations in North Dakota, because the underlying activities were lawful, commercial activities. In United States v. CITGO Petroleum Corp., however, a district court in Texas recently distinguished Brigham Oil and denied a motion to dismiss a conviction

By Buck Endemann and Taiga Takahashi

A district court in North Dakota is the latest tribunal to reflect the growing reluctance among federal courts to criminalize otherwise lawful acts that result in the unintentional killing of birds protected by the Migratory Bird Treaty Act (“MBTA”). In United States v. Brigham Oil & Gas, L.P. (D.N.D. Jan. 17, 2012),[1] the court dismissed several misdemeanor charges under the MBTA against three oil and gas companies that conducted drilling operations in