Mining, oil and gas, wind, solar and transmission companies who have struggled to comply with the Migratory Bird Treaty Act of 1918 (MBTA) received an early Christmas present from the U.S. Department of the Interior’s lawyer. On December 22, 2017, the Principal Deputy Solicitor issued a binding Memorandum Opinion, M-37050, to limit the reach of the MBTA to intentional, unlawful acts of hunting and poaching. In a 41-page legal analysis, the Solicitor concludes, “The text, history and purpose of the MBTA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs, by killing or capturing, to human control. . . . Interpreting the MBTA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principle that ambiguity in criminal statutes must be resolved in favor of defendants.” This action came in response to Executive Order 13783, Promoting Energy Independence and Economic Growth (March 28, 2017) and was a regulatory review specifically identified by Interior in the “Final Report: Review of the Department of the Interior Actions that Potentially Burden Domestic Energy,” (October 24, 2017) at pp. 32-33.

Why was addressing the MBTA a priority for the Trump Administration? For one, it was a “midnight rule” exemplifying the Obama-era regulation of the energy industry. On January 10, 2017, as the Obama Administration was drawing to a close, its Solicitor issued a legal analysis determining that the MBTA should be interpreted to cover “incidental take” (“apply broadly to any activity”) of migratory birds, and the U.S. Fish and Wildlife Service (USFWS) issued an implementing guidance document. “Incidental take” liability means that otherwise lawful actions like constructing a wind turbine, maintaining an oil and gas wastewater facility or constructing a transmission line could result in prosecutable take under the MBTA.¹

To be sure, the application of the MBTA to non-purposeful, otherwise lawful activities that result in the death of migratory birds did not begin with the Obama Administration – it has been an ongoing issue for energy/natural resource companies. There are several reasons for this. First, the MBTA has a broad reach; the Act covers 1027 bird species from the robin to the western meadowlark to ducks and raptors. 50 CFR § 10.13. (List of protected birds).

Second, the MBTA is a “strict liability” statute — no “specific intent or guilty knowledge” needs to be proved – with criminal penalties. The Act makes it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess . . . any migratory bird . . . or any part, nest, or egg of any such bird.” 16 U.S.C. §§ 703-712. Misdemeanor violations may be criminally punished by a fine of up to $15,000 or imprisonment of up to 6 months or both. For example, in 2009 ExxonMobil pleaded guilty to MBTA violations in 5 states over 5 years resulting in the deaths of 85 birds. The company was required to pay a fine and “community service” payments totaling $600,000 and implement a 3-year “compliance plan.” In 2015, PacifiCorp pled guilty to killing 38 golden eagles and 336 migratory birds at two Wyoming wind farms. The company was required to pay a total of $2.5 million, develop a compliance plan, and was placed on probation for 5 years.

Third, although USFWS has taken the position since the 1970s that the MBTA covers “incidental take,” neither the Act nor USFWS regulations address incidental take. The MBTA was developed in a series of treaties entered into between 1916-1978 to regulate what had been the indiscriminate slaughter of birds for food and fashion. For that reason, unlike the Endangered Species Act and Bald and Golden Eagle Protection Act, there is no provision in the MBTA for the issuance of permits to incidentally take migratory birds. Instead, the USFWS has used guidance documents and its “prosecutorial discretion” to encourage the use of Avian Protection Plans, the Land-Based Wind Energy Guidelines and other measures to minimize impacts to birds from otherwise lawful activities.

Fourth, the courts have been split on whether incidental take, habitat modification or federal agencies are covered by the MBTA. The Tenth and Second Circuits take the position that the Act covers incidental take, while the Ninth, Eighth and Fifth Circuits disagree. Most recently, the Fifth Circuit in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015) “agree[d] with the Eighth and Ninth Circuits that a ‘taking’ is limited to deliberate acts done directly and intentionally to migratory birds.” Id. at 488-89. The Fifth Circuit highlighted its concern that “[t]he scope of liability under the government’s preferred interpretation is hard to overstate,” and “would enable the government to prosecute at will and even capriciously (but for the minimal protection of prosecutorial discretion) for harsh penalties.” Id. at 493-494.

The Christmas 2017 M-Opinion has now resolved the argument, for the Department, in favor of a narrow application of the MBTA to actions directed at taking, killing or poaching protected birds. Interior will no longer pursue prosecution for the incidental take of migratory birds under the MBTA. This Solicitor’s Opinion, however, is only binding on Interior bureaus – most importantly the MBTA enforcer, the USFWS. The MBTA prohibitions and strict liability provisions, however, have not been changed and it is conceivable that, in another administration, the Department of Justice or another federal agency could raise MBTA violations for actions incidentally taking migratory birds.

For example, after the Eighth Circuit ruled in 1997 that the MBTA does not apply to federal agencies like the U.S. Forest Service, the Clinton Administration (in its own “midnight rule”) issued Executive Order 13186, “Responsibilities of Federal Agencies to Protect Migratory Birds,” (January 10, 2001) to direct federal agencies to undertake a series of actions to implement the MBTA. The EO directed all federal agencies to enter into MOUs with USFWS to “promote the conservation of migratory birds,” and, among several other actions, to minimize intentional take and to “identify where unintentional take reasonably attributable to agency actions is having or is likely to have measurable negative effect on migratory bird populations.” Although there is no citizen suit provision in the MBTA, the courts are split on whether third-parties can enforce the MBTA against federal agencies using the Administrative Procedure Act (APA).

What about suing a federal agency for issuing a permit to a private party whose actions might take a migratory bird? In 2016, the Ninth Circuit found that neither the MBTA nor the APA permit such a lawsuit. But it is not too hard to predict that project opponents will continue to argue that the failure to consider impacts to migratory birds is a violation of an agency’s duties under the National Environmental Policy Act or the Federal Land Policy Management Act. Taking proactive steps to minimize impacts to MBTA-protected birds through an Avian Protection Plan may still be a prudent action for a project proponent to consider.

 ¹The USFWS has identified the top “human-caused threats to birds” as: cats (2.4 billion birds per year); building windows (303.5 million per year); vehicle collisions (200 million per year); poisons (72 million per year); electrical lines (25 million per year); communication towers (6.5 million per year); oil pits (750,000 per year); and wind turbines (174,000 per year). USFWS, Threats to Birds: Migratory Bird Mortality – Questions and Answers (May 2016).