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Energy and Environment Monitor

Federal Court in NY Vacates Solicitor Opinion Restricting Scope of Migratory Bird Treaty Act to Actions Directed at Birds

August 12, 2020

By: Robert G. McLusky

The Migratory Bird Treaty Act (MBTA) makes it a misdemeanor, “unless permitted by regulations” to “pursue, hunt, take, capture, [or] kill” migratory birds “by any means or in any manner.” 16 U.S.C. Section 703(a). For years, the Interior Department interpreted the Act as prohibiting so-called “incidental takes” - deaths of birds by activities undertaken for other purposes, such as construction of energy projects. That position was reaffirmed by the Interior Department’s Solicitor in the outgoing Obama Administration as late as January 2017 (“Tompkins’ Opinion”).

Unlike the Endangered Species Act, the MBTA does not have a process for approving “incidental takes” of migratory birds. Instead, to allay the fears of developers, the Interior Department historically issued industry guidance, negotiated remediation, and even issued permits allowing takes. Among the guidelines it endorsed were the Avian Protection Plan Guidelines for powerlines and the Land-Based Wind Energy Guidelines. It sometimes sought to assure developers that only the egregious acts of non-compliance would be charged criminally.

Nonetheless, occasional prosecutions for violations of the MBTA spooked energy developers. For example, in 2015, the United States charged a wind turbine operator in West Virginia for violating the Act in 2011. The charges stemmed from claims that the operator had left pole-mounted sodium lamps surrounding its battery storage system lighted, which “trapped” birds migrating through the area during foggy conditions, causing several hundred of them to die in collisions with equipment. The charge, which ended in a plea and fine, heightened concerns in the wind energy community that unintentional behavior could result in criminal charges.

In December 2017, the Trump Administration’s Solicitor withdrew the Tompkins’ Opinion and replaced it with a new one - the so-called Jorjani Memo: https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf. That opinion concluded that the prohibitions on “pursuing, hunting, taking, capturing or killing” apply only to “affirmative actions that have as their purpose the taking or killing of migratory birds, their nests or their eggs.” Following the Jorjani Memo, the US Fish & Wildlife Service issued guidance clarifying that it would not withhold approvals or request mitigation based on concerns with incidental take or imply that it had authority to do so. Within months, several organizations had sued the Interior Department challenging the Jorjani Memo. 

By opinion dated August 11, 2020, a federal judge in New York vacated the Jorjani opinion as issued in contravention of the plain meaning of the MBTA.  See NRDC v. Department of Interior (S.D.N.Y. Aug. 11, 2020). After distinguishing a series of other cases, the Court rejected efforts by the Interior Department to inject ambiguity into the statute in an effort to avail itself of judicial doctrines entitling the agency to “deference” from the Court. Interior argued that the words “take” and “kill” in the list of five prohibited actions (“pursue, hunt, take, capture  or kill” ) should be read as restricted to actions taken against birds, as are the other three terms. The District Court was having none of it. It concluded that “Interior does not explain why the fact that the verb ‘kill’ is associated with activity means that the phrase ‘by any means or in any manner’ should be rewritten to state ‘by any means or in any manner of activity that is specifically directed at birds.’” 

The immediate practical effect of the ruling is unclear. Even under the former Tompkins memo the Interior Department often chose criminal enforcement only in what it viewed as egregious cases. And, in February 2020, the USFWS proposed a rule that would codify that incidental takes of migratory birds are not prohibited by the MBTA. 85 FR 5915 (Feb. 3, 2020). https://www.govinfo.gov/app/details/FR-2020-02-03/2020-01771. The Agency has also announced its intent to prepare an Environmental Impact Statement on the effect of the proposed rule: https://www.federalregister.gov/documents/2020/02/03/2020-01770/migratory-bird-permits-regulations-governing-take-of-migratory-birds-environmental-impact-statement. Even though that rule seeks to codify the now vacated Jorjani Memo, the MBTA prohibits actions that kill or take migratory birds “unless permitted by regulations.” Whether the regulations themselves may be considered as outside the allowable scope of the Act remains to be seen.


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