Endangered Species: Migratory Bird Treaty Act -- Scope of Act Rule

Posted on March 9, 2020 by Richard Horder

On February 3rd, the U.S. Fish and Wildlife Service (USFWS) published a Notice of Proposed Rulemaking that would completely eliminate criminal penalties for “incidental” migratory bird deaths under the Migratory Bird Treaty Act, even when those deaths are foreseeable and preventable.

The Migratory Bird Treaty Act (the Act) is a century-old statute with a broad prohibition on the taking and killing of migratory birds by any means and in any manner. It was originally enacted to protect birds from over-hunting and poaching, but has been used to prosecute and fine companies for accidental bird deaths since the 1970s, particularly when such deaths were anticipatable and preventable through conservation efforts.

The U.S. Department of Interior (DOI) has flip-flopped on its interpretation of the Act in recent years. The Principal Deputy Solicitor concluded in early 2017 that the Act’s “broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” See Solicitor's Opinion M-37041, “Incidental Take Prohibited Under the Migratory Bird Treaty Act,” issued January 10, 2017. However, that regulation was withdrawn less than a month later as the Trump administration evaluated construction of the Keystone XL Pipeline. President Trump issued a memorandum on January 24, 2017, which called for an immediate review of requests for approvals related to the Keystone XL Pipeline, including requests under the USFWS’s regulations implementing the Migratory Bird Treaty Act. In December 2017, the DOI repealed and replaced the earlier regulation with one that clearly states: “Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.” See Solicitor’s Opinion M-37050, “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take,” issued December 22, 2017. The Proposed Rule published this February is an effort to codify this regulatory change.

Businesses and local governments now face no pressure from regulators to take precautionary measures to protect birds, and in some situations, have even been discouraged from doing so. For example, the state of Virginia underwent a major bridge and tunnel expansion in Chesapeake Bay in 2018, which was inevitably going to destroy the nesting grounds of 25,000 seabirds. While the state considered developing an artificial island as a safe haven for the birds, the Trump administration stepped in and told the state that while it “appreciates” the state’s efforts, the shift in policy now makes such conservation measures “purely voluntary.”

The agency’s emphasis on industry over conservation comes at a time when habitat loss, pesticide exposure, and general climate change threats to bird populations are at an all-time high. In fact, research shows that over the past half-century, North America has lost more than a quarter of its entire bird population— about 3 billion birds.

Though conservation efforts may seem burdensome, they provide unexpected benefits to the national economy. A 2016 study conducted by USFWS, the same agency that issued the Proposed Rule, found that more than 45 million people watch birds, joining other wildlife watchers in contributing a total of $80 billion to the U.S. economy. The importance of healthy bird populations will hopefully be addressed in public comments, which will be accepted until March 19. Comments that have been submitted to date can be found here.



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