U.S. Fish and Wildlife Service One Step Closer to Eliminating Liability for Incidental Takes Under Migratory Bird Treaty Act

On November 27, the U.S. Fish and Wildlife Service (FWS) took a major step toward cementing its position that the Migratory Bird Treaty Act (MBTA) does not regulate incidental takings and killings of migratory birds with issuance of a final environmental impact statement (FEIS) analyzing its interpretation that the MBTA’s “take” prohibition is limited to purposeful takings directed at migratory birds only. With the FEIS in hand, FWS will move to codify its position into regulation quickly before the forthcoming change in administration.

According to FWS, its proposal does not alter the current implementation or enforcement of the MBTA, where individuals are not subject to enforcement actions for incidental takes. However, today’s lack of enforcement is a product of FWS discretion — not regulatory certainty. In December 2017, Department of Interior then-Principal Deputy Solicitor Daniel Jorjani issued memorandum M-37050, which reversed a prior Interior interpretation that the MBTA does in fact prohibit incidental takes. Even though FWS proposed codifying the Jorjani opinion into regulation in February 2020, the U.S. District Court for the Southern District of New York vacated the opinion on August 11, 2020, which we analyzed in detail here. Since then, those engaged in industrial activities whose normal business operations may result in the inadvertent killing of migratory birds have been left to parse the case law in their applicable circuit to understand their potential liability, which varies dramatically across the country.

Completion of the FEIS

The FEIS, first published in draft form on June 5, 2020, is now available for public review for 30 days, after which FWS will issue a Record of Decision and then finalize its February 2020 proposed regulation. According to FWS, solidifying its interpretation that the MBTA does not prohibit incidental takes into regulation provides clarity and regulatory certainty to the public and simplifies the obligations of law enforcement, allowing it to view the MBTA’s misdemeanor provision as a strict liability crime for any action directed at migratory birds.

Consistent with its obligation to evaluate all regulatory options under the National Environmental Policy Act, FWS considered and rejected the no-action alternative as well as other options to promulgate regulations to define the scope of the MBTA to prohibit incidental takes, develop a general-permit framework to regulate incidental takes, and develop an enforcement system focusing on gross negligence that leads to incidental takes. While FWS expects that its preferred alternative may increase negative effects to migratory birds as more entities react to the certainty that incidental takes are not prohibited, it predicts that the impacts can be mitigated through best practices developed with stakeholder outreach and voluntary measures.

What’s Next?

Assuming FWS issues a final regulation before January 20, the current administration will have a better chance of cementing its position on incidental takes and shielding it from potential rollback by the incoming Biden administration. Unlike an agency-promulgated interpretive document, which has no binding legal effect, a final regulation cannot be reversed with the stroke of a new administration’s pen. And while Congress could pass a resolution rescinding the regulation within 60 days under the Congressional Review Act, that result is unlikely absent a majority in both chambers. Instead, if the Biden administration seeks to regulate incidental takes under the MBTA, it will need to undergo its own notice-and-comment rulemaking. Alternatively, while the Biden administration could choose to not defend FWS’ forthcoming regulation in court, a decision made through notice-and-comment rulemaking is much less vulnerable to reversal than the Jorjani opinion vacated by the Southern District of New York.

Ultimately, a forthcoming FWS regulation solidifying an interpretation on incidental takes will provide industry with a greater degree of regulatory certainty in the short term. In the long term, it remains to be seen whether the Biden administration will seek to reverse course.