A legal dispute that has occupied three successive Secretaries of the Interior takes another turn on October 4, 2021, as the Biden administration revokes an interpretation of the “incidental take” provision of the Migratory Bird Treaty Act (MBTA or Act) adopted by the Trump administration that operated to excluded unintentional takings from the scope of the Act’s criminal provisions. Instead, this latest action foreshadows this administration’s intention to readopt a broader, more sweeping interpretation of liability under the Act that had been officially adopted in the waning days of the Obama administration.
The U.S. Fish and Wildlife Service (the Service) final rule does not propose replacement language at this time but merely removes the current regulatory language altogether. The Service is expected to concurrently publish a Director’s Order clarifying the Service’s enforcement position until such time as new regulatory language is adopted. Concurrently, the Service is issuing an advanced notice of proposed rulemaking (ANPRM) to guide its establishment of a MBTA permitting program. Comments on the ANPRM will serve as the foundation for a potential three-tiered permitting approach to reduce migratory bird fatality.
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