Last week, the U.S. Fish and Wildlife Service proposed a rule clarifying that the scope of the Migratory Bird Treaty Act 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.
As I described in a 2017 blog post, Migratory Bird Treaty Act Reform is for the Birds, with five federal circuit courts of appeals divided on the question, it is important to bring regulatory certainty clarifying that the criminal scope of the MBTA only reaches to conduct intentionally injuring birds.
Owners of wind turbines and of solar panel farms have had their modern environmentally friendly and legal businesses criminalized under the World War I era MBTA regulatory scheme. In a 2013 blog post I wrote about Duke Energy’s guilty plea in the First Ever Criminal Prosecution for Deaths of Birds by Wind Turbine.
This action codifies the 2017 Department of the Interior Solicitor’s Office Opinion M–37050, which analyzed the scope of the MBTA and determined the act only applies to the intentional take of migratory birds and that the take of birds resulting from an activity is not prohibited when the underlying purpose of that activity is not to take birds.
That is, for the reasons explained in the Memorandum, consistent with the text, history, and purpose of the MBTA, the act’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.
Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.”
It is only a slight exaggeration that owners of house cats, the largest killer of the more than 1,000 species of migratory birds in North America, can now sleep soundly; not to mention owners of real estate with windows a bird may fly in to.
And despite hyperbole from some environmental groups, the Endangered Species Act and the Bald and Golden Eagle Protection Act, as well as state laws and regulations, are not affected by the Solicitor’s Opinion M-37050 or the proposed regulation.
The proposed rule will change how Fish & Wildlife administers the MBTA, and Fish & Wildlife has determined an Environmental Impact Statement under the National Environmental Policy Act is the most efficient and comprehensive approach for considering the potential impacts of this action on the environment. This is the first step in an open and transparent public process that Fish & Wildlife will manage throughout the development of the rulemaking process. The public is encouraged to provide input to help ensure that these changes are clear, effective and advance the goal of migratory bird conservation.
The proposed rule was published in the Federal Register on February 3, 2020, beginning a 45-day public comment period. Written comments must be received on or before March 19, 2020 and can be made at http://www.regulations.gov.
In 2020, when Smokey Bear is “out” and Little Fires Everywhere is “in” this proposed rule has already sparked a fiery debate, pitting members of the environmental industrial complex against each other, but I suggest this rule strikes the correct balance between the 1915 era MBTA law and unintended take, including that associated with modern wind turbines and solar panels.