The US Fish and Wildlife Service’s (USFWS or the Service) revocation of the Trump administration’s Migratory Bird Treaty Act (MBTA) rule took impact final Friday, December 3. On the identical date, the general public remark interval closed on the Service’s Superior Discover of Proposed Rulemaking (ANPR), during which USFWS introduced its plan to subject a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take, and to suggest a system of rules to authorize the incidental take of migratory birds underneath sure circumstances.
As we defined in a latest article, the Service printed a final rule on October 4, 2021, revoking its earlier MBTA rule, 86 Fed. Reg. 54,642 (Oct. 4, 2021) (Rule or Revocation Rule), which was issued on the finish of the Trump administration and established that the MBTA doesn’t prohibit incidental (unintentional) take of migratory birds. 86 Fed. Reg. 1134 (Jan. 7, 2021). Within the preamble to the Revocation Rule, the Service defined that “[t]he immediate effect of this final rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017.” 86 Fed. Reg. at 54,642. The Revocation Rule’s efficient date thus marks a return to uncertainty for a lot of companies concerning their publicity to enforcement for unintentional take of birds protected underneath the MBTA.
The MBTA is one of the oldest wildlife safety legal guidelines within the US, and makes it against the law for any particular person to “take” a migratory fowl. “Take” is outlined broadly underneath the MBTA to incorporate ‘‘pursue, hunt, shoot, wound, kill, entice, seize, or gather” migratory birds, or try such actions. 50 C.F.R. § 10.12. Migratory birds protected by the Act embody roughly 90 p.c of all birds occurring in North America.
Whereas the unique goal of the MBTA was to control over-hunting of migratory birds, primarily by business enterprises, within the Seventies the Service, which has major accountability for MBTA enforcement, broadened its interpretation and commenced prosecuting incidental take of protected birds (i.e., take that outcomes from, however will not be the aim of, an in any other case lawful exercise). Since that point, individuals participating in an exercise more likely to end in a take, nonetheless unintentional and in any other case lawful, have confronted the danger of enforcement.
The Federal Courts of Attraction have cut up on the scope of the MBTA’s take prohibition. The Fifth and Eighth Circuits have held that the MBTA doesn’t prohibit incidental take, whereas the Second and Tenth Circuits have held that it does. In consequence, the geographic location during which an motion happens that might end in take of migratory birds might decide the danger of enforcement underneath the Act.
The Service’s interpretation of the scope of the MBTA’s take prohibition has modified as completely different political events have assumed management over the Govt Department. In January 2017, on the shut of the Obama administration, the Solicitor’s Workplace of the US Division of Inside – of which USFWS is part – issued a authorized opinion affirming the Service’s then-prevailing place that the MBTA prohibits each intentional and incidental take of migratory birds.
Later that 12 months, the Trump administration reversed course, issuing a superseding Solicitor’s opinion on December 22, 2017 (and in the end the January 7, 2021 rule) that sided with the Fifth and Eighth Circuits and concluded that the take prohibition underneath the MBTA applies “only to actions directed at migratory birds, their nests, or their eggs,” 86 Fed. Reg. at 1134, and doesn’t prohibit incidental take. With the Revocation Rule, which merely removes the textual content added to the US Code of Federal Laws by the January 7 rule, USFWS has formally reversed course once more. There’s a good risk that the Rule will likely be challenged in federal court docket.
The subsequent regulatory step within the MBTA saga will seemingly be a proposed rulemaking in step with the ANPR, which would come with a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take, and a proposed system of rules to authorize the incidental take of migratory birds underneath sure circumstances. The Service defined within the ANPR that it’s contemplating a “three-tiered approach” to its MBTA allowing course of, underneath which it might authorize incidental take utilizing three major mechanisms: (1) an exception to the MBTA’s prohibition on incidental take for noncommercial actions, (2) a basic allow system underneath which an entity would register, pay a payment, and conform to adjust to basic allow circumstances tailor-made to particular industries, and (3) a program for issuing particular person permits to authorize incidental take of migratory birds for particular actions or initiatives that don’t meet the standards for eligibility for a basic allow. 86 Fed. Reg. at 54,669. The Service’s proposed allowing program represents a brand new try at an analogous effort that was initiated by the Service in 2015, 80 Fed. Reg. 30032 (Might 26, 2015) however deserted in 2018 following issuance of the December 2017 Solicitor’s opinion concluding that the MBTA didn’t prohibit, and thus no allowing program was wanted for, incidental take. 83 Fed. Reg. 24080 (Might 24, 2018).
If the Service succeeds this time in establishing a workable allowing course of underneath the MBTA, that course of might alleviate some of the uncertainty that has prevailed for years concerning enforcement threat underneath the MBTA, and will present a approach for a lot of companies to extra successfully plan for compliance with the MBTA underneath the Service’s present interpretation of the take prohibition.