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On February 5, 2021, the Fish Wildlife Service (“FWS”), under the Biden administration, announced that it was delaying the effective date of a rule promulgated by the Trump administration regarding “incidental takes” and the Migratory Bird Treaty Act (“MBTA”). On January 7, 2021, the Trump administration published a final rule interpreting the MBTA as not prohibiting incidental takes, and this rule was set to take effect on February 8, 2021. The Biden administration delayed the effective date until March 8, 2021, and it has requested additional public comments on the rule through March 1, 2021.  86 Fed. Reg. 8716, published February 9, 2021.

At the heart of the Trump administration MBTA rule is what constitutes a “take” under the MBTA. 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.” 50 CFR § 10.12. A take is a misdemeanor criminal violation with a maximum penalty of six months in prison and a $15,000 fine.

The final rule promulgated by the Trump administration in January 2021, limits a “take” to a direct, intentional action, the purpose of which is to kill or capture migratory birds, their eggs, or their nests. Previous administrations, including the Obama administration, had a more expansive interpretation of “take,” one that included “incidental takes”—takes that directly and foreseeably resulted from, but were not the purpose of, an activity.

If incidental takes are actionable under the MBTA, this raises possible MBTA liability in a variety of industries (such as wind projects, petroleum refineries, and other energy and infrastructure projects) whose normal day-to-day operations can have unintentional effects on migratory birds.

Neither the regulations nor the statute directly address whether “takes” include “incidental takes,” and courts that have addressed the issue are split on it.

Circuit Split

The Fifth, Eighth, and Ninth Circuits have concluded that at least some non-purposeful incidental takes are not violations of the MBTA. Newton Cnty Wildlife Ass’n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir. 1997); Seattle Audubon Society v. Evans, 952 F.2d 297, 302 (9th Cir. 1991). Most clearly, in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), the Fifth Circuit held that the MBTA “only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.”

Meanwhile, the Second and Tenth Circuits have held that actions which proximately cause migratory bird deaths can be considered “takes” under the MBTA. United States v. FMC Corp., 572 F.2d 902, 908 (2d Cir. 1978); United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010).

Opinions Issued by the Department of Interior Solicitor

In January 2017, in the final days of the Obama administration, the Department of Interior (“DOI”) Solicitor issued an opinion (M-37041) that the MBTA “take” provisions included “incidental takes.” Opinions issued by the DOI Solicitor are binding on the Department, which includes the FWS. In the opinion, the Solicitor defined an incidental take as a “take of migratory birds that directly and foreseeably results from, but is not the purpose of, an activity.” Opinion M-37041 supported this position by relying on the MBTA’s purpose and structure and the historical practice of how the FWS applied the MBTA.

Opinion M-37041 was withdrawn on February 6, 2017, by the Trump administration, and in December 2017, the DOI Solicitor issued an opinion (M-37050) removing “incidental takes” from the purview of the MBTA.  In its opinion, the Solicitor explained that the MBTA “applies only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.” This analysis was largely based on a stricter construction of the statute and the ruling in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015).  Opinion M-37050 was vacated by a New York federal district court in October 2020. Natural Res. Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020).

Regulations Governing the Take of Migratory Birds

Meanwhile, the FWS was going through the formal rulemaking process regarding “takes” under the MBTA.  On January 7, 2021, the FWS published a final rule adopting Opinion M-37050 “as a matter of law and policy.” 86 Fed. Reg. 1134, published Jan. 7, 2021. In the final rule, the FWS noted that Opinion M-37050 had been vacated by the Southern District of New York but explained that it disagreed with this ruling and it had filed an appeal. (Of note, the FWS, under the Biden administration, sought an abeyance of this appeal, which was denied. The FWS brief is due March 3, 2021.) The rule was set to go into effect on February 8, 2021.

On January 20, 2021, President Biden issued a memorandum which recommended suspending the  implementation of pending rules, and the memorandum specifically noted that the Biden administration would be reviewing the January 7, 2021 MBTA rule.  On February 5, 2021, the Biden administration submitted for publication the suspension of the rule, which was published in the Federal Register on February 9, 2020. The final rule is now set to go into effect on March 8, 2021, but whether this will occur is unclear.

If the January 2021 Rule goes into effect, the FWS would be prevented from pursing MBTA claims based on incidental takings. Additionally, because Opinion M-37050 has been adopted through the formal rulemaking policy, if the Biden administration wishes to change course, it has limited options. The Biden administration could ask Congress to take action under the Congressional Review Act (“CRA”), it could wait to see if the rule is vacated by a court, or it could go through formal rulemaking to repeal or amend the rule.

To disapprove the rule under the CRA, within 60 legislative days from the regulation’s release, a simple majority in each house of Congress would need to pass a joint resolution and the president would need to sign it. A rule disapproved pursuant to the CRA is retroactively nullified, and the issuing agency is prevented from reissuing a “substantially similar” rule in the future unless Congress authorizes it to do so.

Environmental groups and twelve states have already filed challenges to the Trump administration’s final rule. See Nat’l Audubon Soc’y, et al. v. U.S. Fish and Wildlife Serv., 1:21-cv-00448 (S.D.N.Y. filed Jan. 19, 2021); New York v. U.S. Dep’t of the Interior, 1:21-cv-00452 (S.D.N.Y. filed Jan. 19, 2021). If successful, these suits could vacate the rule, without Congress or the Biden administration having to use the CRA or promulgate new regulations. Both suits are filed in the Second Circuit, which has previously interpreted the MBTA to include incidental takes.  Further, the suits are before the same judge who vacated Opinion M-37050.

In sum, industry currently faces significant uncertainty concerning the scope of potential liability under the MBTA.   However, additional clarity is on the horizon as the Biden Administration and the courts consider actions concerning the January 2021 rule.

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