Liability for Incidental Take Under Migratory Bird Treaty Act Remains in Flux Following SDNY Decision

Background

Under Section 2(a) of the Migratory Bird Treaty Act of 1918, (the Act) as amended, it is “unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill ... any migratory bird ....” While written in broad terms, the Act does not expressly state that it prohibits incidental — that is, accidental — takes the way the Endangered Species Act and its implementing regulations do. In January 2017, the DOI Solicitor issued memorandum M-37041 — the Tompkins Opinion — finding that the Act prohibits incidental takes. Following the change in administration, in December 2017, DOI then-Principal Deputy Solicitor Daniel Jorjani issued memorandum M-37050 — the Jorjani Opinion — which permanently withdrew the Tomkins Opinion, and then, in April 2018, issued supplemental guidance making clear that Interior does not have authority to regulate the incidental taking of migratory birds under the Act.

August 11, 2020, SDNY Opinion

Shortly after Interior issued the Jorjani Opinion, environmental groups and eight states filed lawsuits in the SDNY seeking to vacate the opinion under the Administrative Procedure Act. Under the Jorjani Opinion’s interpretation, the Act prohibits takings or killings only as a result of actions “directed at” birds, which the plaintiffs argued unlawfully inserts a mens rea (or mental culpability) into the Act’s strict liability standard for penalties. Interior disagreed, arguing that its interpretation only defines the acts or behaviors that the Act prohibits. While the court found the Jorjani Opinion to be less than clear in whether it had applied an impermissible mens rea to the Act, the court ultimately accepted Interior’s argument that the opinion did not impose a mens rea. The court explained how the Jorjani Opinion interpreted the Act without applying a mens rea with a hypothetical: If a child throws a rock at birds in a pond to see them fly and one of those rocks strikes and kills a bird, the child has taken an action directed at a bird without having an intent to kill the bird. However, the court found that Interior’s limitation on the scope of liability under the Act was contrary to the plain language of the statute.

First, the court declined to afford the Jorjani Opinion any legal deference, stating that the Opinion took a sudden departure from Interior’s long-held position that the Act prohibited incidental takes without soliciting public comment or engaging the agency actually tasked with implementing the Act, the U.S. Fish and Wildlife Service. According to the court, the Jorjani Opinion “substantially removes prior incentives for commercial actors to take precautions to avoid threats to migrating birds.”

Second, without affording any deference to Interior’s interpretation, the court found that the Jorjani Opinion impermissibly limited the Act to prohibiting only hunting and trapping activities and ignored the broad language used in Section 2(a). Drawing parallels with the Endangered Species Act, which prohibits incidental takes, the court pointed to both the meaning of “kill” and the Act’s modification of kill through the phrase “by any means or in any manner” to find that the Act prohibits the killing of a migratory bird no matter how and no matter whether it was intentional. According to the court, “kill” includes activities such as “dumping oil waste, building wind turbines, or pressure washing bridges irrespective of whether those activities are specifically directed at wildlife.”

Liability for Incidental Takes Remains in Flux

By vacating the Jorjani Opinion, the court leaves more questions than answers. Presumably, vacatur of the Jorjani Opinion does not otherwise resurrect the Tompkins Opinion, and those undertaking the types of commercial activities that may result in accidental bird kills must carefully parse the case law in their applicable circuit, which varies dramatically across the country. For example, a facility located in Colorado may be subject to liability if a migratory bird dies after landing in an uncovered wastewater tank, whereas a facility located in Texas may not.

Further complicating the issue, the Fish and Wildlife Service issued a proposed rule on February 3, 2020, that would codify the Jorjani Opinion into regulation. Interestingly, the court made only passing reference to the existence of the proposed rule in a footnote without explaining how it may affect its ruling. Assuming the forthcoming final rule tracks the conclusions in the Jorjani Opinion, many of the reasons why the court declined to afford the opinion any deference fall away and drastically change how a future court will review Interior’s position.

Until the agency issues this final rule and codifies a limitation of the Act’s reach to only actions directed at migratory birds, industry players must be mindful of potential liability for incidental takes.