We respectfully disagree with that court's opinion and have finalized this rulemaking consistent with the Supreme Court's holding in Brand X. See Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir. This series of events would lead to further restrictions and require substantial resources to manage and ensure conservation and recovery. Fish and Wildlife Service (FWS, Service, we), define the scope of the Migratory Bird Treaty Act (MBTA or Act) as it applies to conduct resulting in the injury or death of migratory birds protected by the Act. at 375. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. It is not an official legal edition of the Federal 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. This action is necessary to improve consistency in enforcement of the MBTA's prohibitions across the country and inform the public, businesses, government agencies, and other entities what is and is not prohibited under the MBTA. OIRA has determined that this rule is significant. MIGRATORY BIRD TREATY ACT (MBTA) . An expansive reading of the MBTA that includes an incidental-take prohibition would subject those who engage in these common, and necessary, activities to criminal liability. In some cases, there are other Federal, State, Tribal, or local laws and regulations that directly or indirectly require actions to benefit or otherwise reduce impacts on migratory birds. For example, on the floor of the Senate, Senator Reed proclaimed: I am opposed not only now in reference to this bill [the MBTA], but I am opposed as a general proposition to conferring power of that kind upon an agent of the Government. Comment: One commenter questioned the evidence suggesting that this rule change is warranted. This legal uncertainty also leads to scientific uncertainty about future impacts on birds. See Convention between the Government of the United States and the Government of Japan for the Protection of Migratory birds and Birds in Danger of Extinction, and their Environment, 25 U.S.T. Enough birds will keep every insect off of every tree in America, and if you will quit shooting them, they will do it. This rulemaking will not affect those investigations. This is reinforced by the rest of the hypothetical, which posits that the boy threw a stone at and strikes and injures a robin's nest. The underlying act is directed specifically at the robin's nest. While the MBTA does contemplate the issuance of permits authorizing the taking of wildlife, it requires such permits to be issued by regulation. See 16 U.S.C. Common examples of such actions include driving a car, allowing a pet cat to roam outdoors, or erecting a windowed building. 1978) (the court instructed the jury not to consider the company's remediation efforts as a defense: Therefore, under the law, good will and good intention and measures taken to prevent the killing of the birds are not a defense.). Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y.). The Service determines the relevant language in section 2 to be ambiguous, which is consistent with the views of most Federal courts. The Service must consider how its proposed interpretation is consistent with that diplomatic exchange and seek Canada's views on the Service's new interpretation in light of that exchange. Response: We agree with the comment that the language of section 2 of the MBTA pertains to conduct directed at migratory birds and not conduct that incidentally results in the death of migratory birds. Congress also recognized that birds benefit American agriculture and forestry through the consumption of vast numbers of insect pests. Some courts have attempted to interpret a number of floor statements as supporting the notion that Congress intended the MBTA to regulate more than just hunting and poaching, but those statements reflect an intention to prohibit actions directed at birdswhether accomplished through hunting or some other means intended to kill birds directly. While every effort has been made to ensure that Additionally, Article V prohibits the taking of eggs or nests of certain protected species, except for scientific and propagating purposes under regulations issued by the parties, and Article VI prohibits transport, import, and export of protected species except for scientific or propagating purposes. Certainly, other Federal laws may require consideration of potential impacts to birds and their habitat in a way that furthers the goals of the Conventions' broad statements. Response: The Service recognizes that there are numerous reasons why an entity would continue to implement best practices, including other Federal or State laws, industry standard practices, public perception, etc. Under the MBTA it is illegal to destroy a nest that has eggs or chicks in it or if there are young birds that are still dependent on the nest for survival. Response: Our interpretation of the MBTA concludes that the statute does not prohibit incidental take, including any resulting from wind-energy facilities. The component actions of take involve direct actions to reduce animals to human control. As the Supreme Court has instructed, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. United States v. Shabani, 513 U.S. 10, 13 (1994). Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. Over 100 years of case law and amendments to the statute have provided extensive guidance on the requirements to prove intent under the criminal provisions of the MBTA. Closed loop drilling fluid systems typically used for reasons other than bird mitigation. Response: The exchange of diplomatic notes the commenter references occurred in 2008 and did not amount to an agreement that prohibiting incidental take was required by the Convention. Response: The Service acknowledges that birds are currently in decline. Quoting Black's Law Dictionary, the court defines proximate cause as that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. Id. We will not hold entities accountable for take that does not violate the MBTA. for Biological Diversity v. Pirie, 191 F. Supp. 22-23 (1917) (statement of R.W. In addition, many businesses will continue to take actions to reduce effects on birds because these actions are best management practices for their industry or are required by other Federal or State regulations, there is a public desire to continue them, or the businesses simply desire to reduce their effects on migratory birds. Assuming, arguendo, that the MBTA is ambiguous, the interpretation that limits its application to conduct specifically directed at birds is necessary to avoid potential constitutional concerns. The NRDC district court predicated its broad reading of kill primarily on the notion that a narrower reading would read the term out of the Act by depriving it of independent meaning. 703-712), which implements the above-mentioned treaties. This rulemaking should increase that cooperation and coordination by removing the specter of a potential criminal prosecution, which has often acted as a deterrent for private parties to share information with the Service on their impact on migratory birds and work with the Service on conserving migratory bird species. 104-28 (Dec. 14, 1995) (outlining conservation principles to ensure long-term conservation of migratory birds, amending closed seasons, and authorizing indigenous groups to harvest migratory birds and eggs throughout the year for subsistence purposes); Protocol between the Government of the United States of America and the Government of the United Mexican States Amending the Convention for Protection of Migratory Birds and Game Mammals, Sen. Treaty Doc. The language of the act needs to be changed to protect those who injure birds on a purely accidental basis. Fish and Wildlife Service. The Service eliminated that alternative from further consideration because developing a general-permit system would be a complex process and better suited to analysis in a separate, subsequent proposal. Comment: One commenter recommended that the Service prohibit incidental take that results from an extra-hazardous activity. This, however, is exactly the mode of statutory construction rebuffed by the Supreme Court in Bostock. Response: Best management practices (BMPs) have never been required under the MBTA, other than as part of our occasional application of the special purpose permit provision to authorize Start Printed Page 1148incidental take under certain circumstances, as there has never been a specific permit provision for authorizing incidental take that would require their implementation. . 252 U.S. 416, 432-33 (1920). 1991))); United States v. CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. Most bird nests are protected under the Migratory Bird Treaty Act (MBTA). The public comment period for the scoping notice and the draft EIS provided opportunities to weigh in on the alternatives to the proposed action. See Act of June 1, 1974, Public Law 93-300, 88 Stat. This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. Changes in design of longline fishing hooks, change in offal management practices, and flagging/streamers on fishing lines. Comment: Multiple commenters noted that NEPA requires that decisions be analyzed in a public process before an agency irretrievably commits its resources. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). Response: We disagree that this rulemaking will result in a substantial increase in the number of migratory birds killed. . Response: Per the National Environmental Policy Act (NEPA), the Service analyzed the impacts mentioned by the commenter within the draft Environmental Impact Statement (EIS) published June 5, 2020. Comment: Multiple commenters suggest that the Service's choice to release a proposed rule based on a policy change it is already implementing, and conduct a NEPA analysis after-the-fact, turns NEPA on its head. . For example, colonial nesting birds are highly sensitive to disturbance; destruction of their nests during or near the nesting season could result in a significant level of take. Accordingly, the guidelines do not provide enforceable legal protections for people and businesses who abide by their terms. Comment: Numerous commenters requested that the Service return to the previous interpretation of the MBTA and publish a proposed rule that codifies the former interpretation that the MBTA prohibits incidental take. The commenters conclude that the Service should focus enforcement of incidental take on large-scale, high-mortality, and predictable situations where unintentional loss of migratory birds is likely to occur, based on the best scientific information. Whether the Federal Government had any authority to regulate the killing or taking of any wild animal was an open question in 1918. We will continue to cooperate with States that request our assistance in developing best management practices for various industries that minimize incidental take of migratory birds. Comment: The Service must complete a full analysis of the impacts of the Solicitor's M-Opinion itself, not just the incremental impacts of codifying the M-Opinion. Comment: Multiple commenters recommended that the Service abandon the current proposed action and revert to the previous M-Opinion and the 2015 MBTA proposal for developing and implementing a general permit program that works with industry to identify best practices to avoid or minimize avian mortality. to make it a crime for a man to shoot game on his own farm or to make it perfectly legal to shoot it on his own farm. [n]o regulations have been issued to create a permit scheme to authorize incidental take, so most potential violators have no formal mechanism to ensure that their actions comply with the law. 85 FR at 5922. To pretend otherwise ignores the agency's own established practices and guidance and constitutes another failure of the Federal Government's trust responsibilities. As noted above, this rule is a significant regulatory action under E.O. FWS-HQ-MB-2018-0090. $7,500 per power pole with high variability of cost at 1583 n.9 (noting that the FMC court's limiting principle . Moon Lake, 45 F. Supp. include documents scheduled for later issues, at the request 1582 (Such trust in prosecutorial discretion is not really an answer to the issue of statutory construction in interpreting the MBTA.). In a landmark decision upholding the constitutionality of the MBTA, Justice Holmes wrote that migratory birds, which yesterday had not arrived, tomorrow may be in another State and in a week a thousand miles away can be protected only by national action. Missouri v. Holland, 252 U.S. 416, 434-35 (1920). . 12630, this rule does not contain a provision for taking of private property, and would not have significant takings implications. It is important to note that the MBTA should not be relied upon by itself to reduce large-scale impacts on migratory bird populations, whether or not it is interpreted to prohibit incidental take. From the Winter 2022 issue of Living Bird magazine. Businesses located in the States that do not have existing regulations would have the option to reduce or eliminate best management practices without potential litigation. First, in 1918, Congress adopted the MBTA to address the direct and intentional killing of migratory birds; Second, in 1929, Congress adopted the Migratory Bird Conservation Act to more effectively implement the Migratory Bird Treaty by protecting certain migratory bird habitats. U.S. law has long differentiated between harm caused by intent and harm caused by accident. Here, an attempt to impose liability for acts that are not directed at migratory birds raises just such constitutional concerns. In the commenters' experience the expenses of taking measures to minimize incidental take are minor and even the fines are minor to small businesses. 2d at 1080-81. . Response: This proposal does not authorize the taking of migratory birds; it defines the scope for when authorizations under section 703 are necessary and appropriate. Data not available for number of operators who have implemented these practices. Interior's elimination of longstanding Federal protection harms State interests. (quoting Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302 (9th Cir. That analysis includes comparing the effects of both interpretations. These tools are designed to help you understand the official document Accordingly, an interpretation with broad implications for the American public was implicitly adopted without public debate. Following this discussion is a summary of mitigation measures and costs (Table 6) and a summary of the economic effects of the rule on the business sectors identified in Table 1 (Table 7). 715-715s). The MBTA states that unless permitted, it is unlawful to . Response: The Service works with offshore-wind-energy companies and Federal and State agencies responsible for regulating this industry. documents in the last year, 998 Despite the phrase incidental take not appearing in either the MBTA or implementing regulations, its protective statutory intent remains clear, as shown by its common and long-time use in Congressional hearings and correspondence, and in inter- and intra-agency communications. Comment: One commenter stated that this rule represents a fundamental abdication of the Service's mission to protect native wild birds. It is not required for projects to submit data on incidental take; however, we encourage proponents voluntarily to submit these data so that we are able to track bird mortality. Learn more about structure 7446 (1918) (statement of Rep. Stevenson)). Comment: Multiple commenters stated that Solicitor's M-Opinion 37050 stands in direct conflict with Executive Order 13186 executed by President Start Printed Page 1155Clinton in 2001. Nor do the owners of electrical lines `take' migratory birds who run into them. Some States have statutes with procedural requirements similar to those found in NEPA (e.g., California Environmental Quality Act) and a variety of provisions regulating some form of incidental, indirect, or accidental take, or potentially allowing commissions or agencies to make applicable rules. Response: The Service appreciates the perspective of the entities that support this rulemaking. However, the interpretation of the MBTA applying Start Printed Page 1154strict liability to the law's criminal misdemeanor provision covering incidental take raises no constitutional problems, nor is it contrary to the intent of Congress. 4, 1972) (Japan Convention); Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, 29 U.S.T. Comment: One commenter requested that the Service remember their treaty obligation to protect birds that are shared with other countries that as independent nations could not ensure the protection of species that migrate across borders. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. This rule may reduce the incentive for affected parties to implement these guidelines. Therefore, these entities will have better information for planning projects and achieving goals. Register (ACFR) issues a regulation granting it official legal status. Any chicks within those nests would likely be destroyed killing those chicks, but the maintenance workers would not take them in the common law sense. The Public Inspection page Response: We do not agree with the commenters that this rulemaking conflicts with Executive Order 13186. To this end, the United States supports these aspirations of the UNDRIP through the government-to-government consultation process when agency actions may affect the interests of federally recognized Tribes. In accordance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and the Department of the Interior's manual at 512 DM 2, we considered the possible effects of this rule on federally recognized Indian Tribes. It further states [e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. documents in the last year, 37 105-26 (May 5, 1997) (authorizing indigenous groups to harvest migratory birds and eggs throughout the year for subsistence purposes). Comment: One commenter noted that the Service should not rely on other statutes or regulations to absolve itself from addressing incidental take. By specifying that entities should be held liable only if they can be proven to have set out to purposefully kill birds, the proposed rule flips the burden from regulated entities to the government. An example of this are shorebird nests which may appear to be just a small depression or scrape in the ground, perhaps lined with some twigs, stones, or shells, that can be very hard to identify as a nest. This law says: No person may take (kill), possess, import, export, transport, sell, purchase, barter, or offer for sale, any migratory bird, or the parts, nests, or eggs of such bird except as may be permitted under the terms of a valid permit Under the MBTA it is illegal to destroy a nest that has eggs or chicks in it or if there are young birds that are still dependent on the nest for survival. Given the overwhelming evidence that the primary purpose of section 2, as amended by the Mexico Treaty Act, was to control over-hunting, the references to the later agreements do not bear the weight of the conclusion reached by the prior Opinion (M-37041). was enacted in 1918 to help fulfill the United States' obligations under the 1916 Convention between the United States and Great Britain for the protection of Migratory Birds. 39 Stat. Because data are unavailable about the distribution of possible range of measures and costs, we do not extrapolate cost data to small businesses. Otherwise-lawful economic activity should not be functionally dependent upon the ad hoc exercise of enforcement discretion. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. In addition, even if such a conclusion is not legally compelled, the Service proposes to adopt it as a matter of policy. In fact, agencies may codify interpretations struck down by courts and have subsequent courts defer to and uphold the later rulemaking. In its current form, section 2(a) of the MBTA provides in relevant part that, unless permitted by regulations, 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, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof. documents in the last year, 28 Even though destruction of nest by itself is not prohibited under the MBTA, nest destruction that results in the unpermitted take ofmigratory birds, or their eggs, is illegal and fully prosecutable under the MBTA. One Member of Congress even offered a statement that explains why the statute is not redundant in its use of the various terms to explain what activities are regulated: [T]hey cannot hunt ducks in Indiana in the fall, because they cannot kill them. Comment: One commenter asked who would be financially responsible to mitigate and/or reverse the effects of an environmental disaster on a large or small scale, to prevent any further incidental takes of birds or their eggs once the disaster is under way. The parties to those Conventions may meet to amend and update the provisions of the Conventions, but enactment, amendment, and implementation of domestic laws that implement those Conventions do not require concurrence by the other parties. For instance, the manner and means of hunting may differ from bow hunting to rifles, shotguns, and air rifles, but hunting is still a deliberately conducted activity. We refer the commenter to the analysis of the economic impacts of interpreting the scope of the statute to prohibit incidental take in the EIS and regulatory impact analysis conducted to comply with Executive Orders 12866, 13563, and 13771. It is also unknown how many businesses continued or reduced practices to reduce the incidental take of birds since publication of the Solicitor's M-Opinion. This PDF is L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small businesses, small organizations, and small government jurisdictions. To be sure, Congress may draft statutory language to include potential future concerns not readily predicted at the time of enactment, but there is no indication that Congress intended the language of section 2 to encompass accidental or incidental deaths of migratory birds. This rulemaking may violate federalism rules, as States will be required to use their budgets to implement migratory bird protection actions, including regulation development and permit systems. See United States v. FMC Corporation, 572 F.2d 902 (2d Cir. Except for the baiting of game birds, the MBTA is a strict liability statute that allows for the imposition of criminal penalties. This is clear evidence of the longstanding U.S. position under international law, and in agreement with its treaty partners, that the MBTA is a strict-liability statute covering incidental take.
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