UPDATE: On January 7, 2021, the Fish and Wildlife Service published a final rule on its determination that the Migratory Bird Treaty Act does not prohibit incidental takes of migratory birds. The determination will be codified at 50 C.F.R. § 10.14.
Does the Migratory Bird Treaty Act prohibit incidental takings and killings of migratory birds? Following the U.S. Interior Department’s (Interior or DOI) issuance of contradictory legal opinions under the Obama and Trump administrations in 2017, and an August 11, 2020, decision issued by District Judge Valerie Caproni of the U.S. District Court for the Southern District of New York (SDNY), the answer is even more uncertain. Whether the Migratory Bird Treaty Act imposes liability for incidental takings is an important question for those engaged in a broad range of industrial activities — such as petroleum refineries, airports, and wind power generators — whose normal business operations may result in the inadvertent killing of migratory birds.
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