The final rule becomes effective on February 8, 2021.We previously reported on the Service’s proposal to study the environmental impacts of a change in rule to limit the MBTA to intentional acts. A link to the February 2020 post can be accessed HERE.BackgroundThe MBTA, 16 U.S.C. 703 et seq., was enacted in 1918 to fulfill the United States’ obligations under the 1916 “Convention between the United States and Great Britain for the protection of Migratory Birds.” 39 Stat. 1702 (Aug. 16, 1916)(ratified Dec. 7, 1916).

New Guidance from the U.S. Fish and Wildlife Service Confirms the Agency will not Use Authority under the MBTA to Regulate Incidental Take of Migratory BirdsThe Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. § 703; “MBTA” or the “Act”) implements the United States’ obligations under four international avian protection conventions by making it “unlawful at any time, by any means or in any manner” to take or attempt to take any migratory bird, or any part, nest, or egg of any such bird, covered by the aforementioned treaties, except as permitted by regulation.[1] “Any migratory bird” means any of the over 1,000 migratory bird species covered by the Act and, in contrast to the Endangered Species Act, species are listed under the MBTA regardless of whether they are endangered and in need of statutory protection.[2] Violations of the MBTA’s prohibition on taking (wounding or killing) migratory birds can result in significant per violation (i.e., per bird) criminal fines, imprisonment, or both.

The word, however, is used independently in the statutory text. See 16 U.S.C. § 703(a) (“[I]t shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture or kill....” (emphasis added)). In fact, charging documents often list only “take” of migratory birds as the defendant’s violation.

In the last month, two separate federal district courts have declined to extend the scope of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 (MBTA), to federal agency approvals of projects that plaintiffs alleged could potentially and indirectly result in the “taking” of migratory birds. The impact of these decisions is important to industries, such as the wind power industry, that face legal challenges premised on allegations that their future operations will harm migratory birds in violation of the MBTA.

On November 8, 2017, the House of Representatives Committee on Natural Resources approved an amendment to oil and gas-related legislation, the SECURE Act (H.R. 4239), that is intended to obviate liability for the incidental or accidental take of migratory birds under the Migratory Bird Treaty Act, 16 U.S.C. §703 et seq. (“Act”). The amendment, submitted by Congresswoman Liz Cheney (R-WY), provides: “This Act shall not be construed to prohibit any activity proscribed by section 2 of this Act that is accidental or incidental to the presence or operation of an otherwise lawful activity.”

To connect transmission lines from turbines to the power grid on shore, a project will likely require a Clean Water Act Section 404 permit and a Rivers and Harbors Act Section 10 permit, both from the U.S. Army Corps of Engineers. The lead federal agency will also be required to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service about whether the proposed construction and operation might “take” (harm) wildlife protected under the Endangered Species Act (16 U.S.C. §§1561 et seq.), the Marine Mammal Protection Act (16 U.S.C. §§1361 et seq.), the Bald/Golden Eagle Protection Act (16 U.S.C. §668-668c), and the Migratory Bird Treaty Act (16 U.S.C. §§703-712). Incidental take authorizations may be required for construction and operation of the project based on any of those consultations.

Specifically, the act makes it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess . . . any migratory bird . . . or any part, nest, or egg of any such bird.” 16 U.S.C. §§ 703-712. The MBTA was enacted in 1918 to implement an international treaty to protect migratory birds threatened by the commercial trade of birds and their feathers.

Specifically, the act makes it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess . . . any migratory bird . . . or any part, nest, or egg of any such bird.” 16 U.S.C. §§ 703-712. The MBTA was enacted in 1918 to implement an international treaty to protect migratory birds threatened by the commercial trade of birds and their feathers.

The MBTA makes it illegal to take, kill, possess, transport, or import migratory birds, or their eggs, parts, or nests without a permit. 16 U.S.C. § 703. Under the MBTA regulations, “take” means “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.”

“The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.