Interior Reins in the MBTA to Remove a “Domestic Energy Burden”

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

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U.S. Fish and Wildlife Service Announces Notice of Intent to Prepare Rulemaking for Migratory Bird Treaty Act Incidental Take Permits

On May 26, 2015, the U.S. Fish and Wildlife Service issued a notice of intent (NOI) to prepare a programmatic environmental impact statement (EIS) evaluating the impacts of a proposal to authorize the incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA).

The MBTA was enacted almost 100 years ago in order to curb poaching and commercial hunting of migratory birds. The MBTA makes it unlawful to “pursue, hunt, take, capture, kill, attempt to take, capture or kill,” possess, sell, purchase, or ship any migratory bird or any part, nest or egg of a migratory bird, unless authorized “taking” by a federal regulation (such as the issuance of hunting permits and permits for the control of injurious or depredating birds). “Taking” under the MBTA is defined more narrowly than under the Endangered Species Act or the Bald and Golden Eagle Protection Act, and, in contrast to those statutes, the MBTA does not include a prohibition on general harassment of birds or habitat modification.

Nonetheless, even with the slightly narrower prohibitions contained in the MBTA, individuals still face potential criminal liability for violations of the Act. Currently, there is no regulatory mechanism in place to provide protection from prosecution for harm caused to migratory birds during common commercial and industrial activities.

The NOI outlines several proposals the FWS is evaluating for authorizing take of migratory birds, and has asked for industry feedback on these proposals, which include:

• Individual, site-specific incidental take permits for activities that “present complexities or siting considerations that inherently require project-specific considerations, or for which there is limited information regarding adverse effects.”

• General, nation-wide take authorizations for identified types of hazards known to be caused by specific industry activities. These industry activities include utility-scale wind and solar generation and certain E&P activities such as oil and gas reserve pits and wastewater ponds, flares, exhaust pipes and vents at oil and gas production sites.

• Entering into or expanding inter-agency agreements with other federal agencies permitting the other agencies to provide incidental take authorization when permitting actions regulated by those agencies.

• Expanding the scope of the use of voluntary guidance agreements in specific industry sectors, such as wind, solar and oil and gas. Under these agreements, best management practices and mitigation measures are set out that, if complied with, lessen the likelihood of prosecution in the event of a take. FWS currently uses this approach with wind and solar producers.

It is almost certain that, if FWS moves forward with the rulemaking, the rule will face legal challenges. Federal courts are split on whether the MBTA even prohibits the incidental killing of migratory birds. The 10th Circuit has held that MBTA liability is triggered any time a bird is killed, even if that was not the purpose of the activity. However, the 9th Circuit and the Federal District Court for the District of North Dakota have disagreed, finding that the MBTA only prohibits the intentional killing of migratory birds. Thus, the FWS’s authority to regulate incidental take is not clear.

Beyond the questions of regulatory authority are the practical concerns related to agency capacity to process what could be a huge number of new permits. Permit processing times for oil and gas facilities and renewable energy operations can already span a period of years, and adding an additional layer of federal oversight could potentially extend these already long permitting times. It is also unclear whether the FWS intends to grant incidental take permits only for new projects or facilities, or whether it will seek to permit existing facilities as well. Aware of the likely administrative burden this would impose on the FWS, the NOI makes clear that intends to focus largely on industry sectors that are known to cause a large number of bird deaths. However, this could still embrace a very large number of actions.

The NOI invites comment on the proposal through July 27, 2015. After scoping is complete, FWS will prepare a draft EIS for public comment, which would likely be accompanied by proposed regulations.

The NOI can be found at:

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Obama Administration Proposes Changes to ESA-listing Rule

In an apparent attempt to head-off legislative changes to the Endangered Species Act (“ESA”) that have been threatened by Congressional Republicans, President Obama unveiled a suite of proposed changed to the ESA species listing process.   These changes, contained in a proposed rule that was announced on May 19, are largely focused on making it more difficult to file petitions to list species and designate critical habitat.

Section 4 of the ESA allows “any person” to petition the federal government (either the Fish and Wildlife Service for terrestrial species, or the National Oceanic and Atmospheric Administration for aquatic species) to list the species as threatened or endangered. This provision has resulted in a slew of petitions filed by individuals and environmental groups, often seeking the listing of numerous species through a single petition. The FWS and NOAA, which are required by ESA Section 4 to respond to petitions within 90 days, have been unable to keep up with the petitions. The result has been numerous pieces of multi-district litigation and settlement agreements requiring that FWS and NOAA respond to listing petitions within specified timeframes.

Under the proposed rule, listing petitions would be limited to one species at a time, preventing the massive omnibus petitions that gave rise to the multi-district litigation settlements. The rule would also require that parties submitting petitions to list species provide copies of the petitions to state fish and game agencies at least 30 days before they are submitted to FWS or NOAA. If a state wishes to submit comments on the accuracy or completeness of the petition, the petition is required to submit the state’s comments to the FWS or NOAA along with the petition.  The proposed rule also requires that specific information on the species be provided with the petition, including disclosure of any data that would not support listing of the species.  The petitions would also have to include:

•Literature citations that are specific enough for the agencies to find the information, including by page and chapter.

•Electronic or hard copies of any supporting materials, such as publications, maps, reports and letters cited in the petition, or valid links to public websites where the information can be found.

•Information demonstrating that the petitioned wildlife meets ESA's definition of a "species."

•Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available.

The proposed rule can be found at: 

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UT Governor Herbert Signs Executive Order on the Greater Sage Grouse to Short Circuit Federal Listing

On Tuesday, February 10, 2015, Utah Governor Gary Herbert signed an executive order directing state agencies to implement additional state-level protection measures aimed heading off a potential federal listing of the sage grouse as “threatened” or “endangered” under the Endangered Species Act. Under a settlement reached in 2012, the U.S. Fish and Wildlife Services have until September 2015 to decide whether the sage grouse should be listed under the ESA. Referring to the consequences of such a designation as potentially “devastating,” Governor Herbert’s executive order requires that all state agencies minimize the impact of activities on sage grouse, consult with the Utah Division of Wildlife Resources on decisions that could affect sage grouse habitat, and incorporate directives from the Utah Conservation Plan into state operations.

While the executive order requires consideration of sage grouse protections in agency decision-making, it does not impose the level of regulation or constraints on private property and federal lands that would be imposed if the sage grouse is listed under the ESA. According to Governor Herbert, "The concern we have here in Utah that in doing so [a federal listing], it will have a significantly devastating impact on our economy," particularly on farmers, ranchers and those involved in natural resource extraction.

The executive order implements a number of proposals contained in the Utah Sage Grouse Conservation Plan, which was completed in April 2013 and contained recommendations for habitat preservation. While many of the recommendations contained in the Conservation Plan have been informally implemented by state agencies, the executive order seeks to make the Plan’s recommendations mandatory. According to Utah’s Public Lands Policy Coordinating Office, informal implementation of the Conservation Plan and other localized habitat preservation efforts have already led to an increase in sage grouse populations throughout the state.

In conjunction with the executive order, Utah lawmakers are seeking a $2 million appropriation to preserve sage grouse habitat. These protections would include projects on state and private lands to improve sage grouse habitat, such as removing pinyon-juniper stands which encroach onto sage brush. According to Senator Kevin Van Tassell, who proposed the appropriation, the executive order and the state habitat preservation projects are intended to show the FWS that state-level management of the species is working and that federal intervention through the ESA is unnecessary.

Governor Herbert’s executive order comes almost five years after former Wyoming Governor Freudenthal’s executive order on Sage Grease Core Area Strategy and is intended to promote the same goal: prevention of an ESA listing. Wyoming has been a leader in this movement, and implementation of its conservation plan—which includes a prohibition on surface disturbing activities in areas designated as core habitat—have proven successful.

It remains to be seen whether these state-level efforts will be sufficient to forestall a federal listing of the Greater sage grouse or whether Utah’s response will prove to be too little too late.

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Interior Will Make Greater Sage-grouse Determination Despite Congressional Rider

In a January 26, 2015 letter responding to the bi-partisan co-chairs of the Western Governors’ Association State-Federal Sage-Grouse Task Force, Interior Secretary Jewell stated that, despite a congressional rider prohibiting the U.S. Fish and Wildlife Service from issuing a listing rule, the Department will make a listing determination for the greater sage-grouse by the court-ordered deadline of September 30, 2015. “In line with that obligation, the [FWS] is on schedule to make a determination by that date, based on revised Bureau of Land Management and U.S. Forest Service land management plans, an enhanced rangeland fire strategy . . . and states’ plans to conserve the greater sage-grouse.”
In a 2011 settlement, FWS committed to making a final listing decision for the greater sage-grouse either as “warranted” (as endangered or threatened) or “not warranted” for listing under Section 4 of the Endangered Species Act September 30th. In December 2014, the appropriations bill signed by the President (H.R. 83) contained language prohibiting the FWS from writing or issuing a rule to list the greater sage-grouse.

Under ESA § 4, if FWS decides to list a species it must be done by notice and comment rulemaking. This process begins with a proposed rule and ends with a final rule between 90 days and 18 months later. The proposed rule must summarize the data upon which it is based, show the relationship of the data to the proposed rule and provide a summary of the factors affecting the species. At least a 60-day comment process is required. Within 12 months of the publication of the proposed rule, FWS must either publish or withdraw the proposed rule or upon a finding of “substantial disagreement regarding the sufficiency or accuracy of the available data” extend the deadline for no more than 6 months. For land users, an important component of a listing rule is the identification of specific activities that will, or will not, likely result in a “take” violation under ESA § 9. This section of the Act prohibits “take” of a listed species anywhere and everywhere – federal, state or fee lands.
With the congressional rider in place, FWS can’t issue a listing determination rule for the greater-sage grouse, or, as in the case of the now-listed as threatened Gunnison sage grouse (see prior post), FWS can’t issue an ESA § 4(d) rule providing for management flexibility. FWS can issue a not-warranted finding, complete the analyses for a listing determination or a ESA 4(d) rule, or issue an emergency listing rule for 240 days under ESA 4(b)(7). The nightmare scenario is that FWS will make a determination in September that the bird should be listed, but because of the rider won’t be able to give guidance in a rule on how the public can avoid “take”. Similarly, the ESA § 7 consultation process for federal actions would grind to a halt as federal agencies comply with the consultation process without any actionable information from FWS.

Over the last several years, the states that would be most affected by a listing have been working on state conservation plans and coordinating with the federal land management agencies in an effort to forestall a listing. On January 16, 2015, Governors Hickenlooper (CO-D) and Mead (WY-R) wrote to the Secretary with two questions, the first concerning the schedule for listing and the second asked “[w]hat funding was provided to support state and federal efforts focused on greater sage-grouse conservation? In particular, how will BLM use the $15 million appropriated to the agency?”
The Secretary’s response to the funding question was not encouraging, “[t]he Department intends to spend the $15 million appropriated . . . to complete the BLM land management plans and implement actions critical to sagebrush conservation and restoration . . . [and] will continue to work with the states to complete our land management plans, solicit their advice in developing our rangeland fire strategy, and prioritize actions on the ground to protect and restore sagebrush landscapes and important habitat.” Emphasis added. Secretary Jewell did conclude her letter by affirming the “shared goal” of getting to a “not warranted” finding.

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Nevada Association of Counties Sue over Candidate Species Settlement

In a new twist in the ongoing debate between states and the federal government over the management of wildlife, the Nevada Association of Counties sued the U.S. Fish and Wildlife Service (“FWS”), arguing that the highly publicized and controversial 2011 settlement of a lawsuit between the FWS and environmental groups that forces listing determinations by a date certain violates the Endangered Species Act (“ESA”). On December 4, 2014, the Nevada Counties filed the suit in the United States District Court for Nevada, Case No. 3:14-cv-00630 challenging the settlement of In re Endangered Species Act Section 4 Deadline Litigation (“2011 Litigation”).

In the 2011 Litigation, a coalition of environmental groups filed multiple actions to compel the FWS to meet statutory deadlines on hundreds of pending ESA § 4 listing petitions. When a species is proposed for listing under the ESA, the ESA requires that the FWS study the candidate species and then issue a determination finding that the listing of the species as “threatened” or “endangered” is either “warranted,” “not warranted,” or “warranted, but precluded by other priorities.” 16 U.S.C. § 1533(b)(3)(B); 50 C.F.R. § 424.14(b). Listed species are entitled to heightened protection by the federal government, state and private actors. Although candidate species may be protected under other federal and state regulation, they are not managed under the ESA.

Over the last decade, wildlife advocates flooded the FWS with listing petitions; FWS lacked the resources to keep up with the statutory listing determination deadlines. For the species targeted by the 2011 Litigation, rather than deciding whether a species should be listed or not, FWS stalled for time (and resources) by finding the listing of the species “warranted, but precluded.” The FWS settled the case by agreeing not to issue determinations of “warranted, but precluded” for the species named in the litigation, but would instead only issue decisions finding that the listing of the candidate species was “warranted” or “not warranted” under the ESA. See Stipulated Settlement Agreements, In re Endangered Species Act Section 4 Deadline Litigation, Misc. Action No. 10-377 (D.D.C. May 10, 2011 and July 12, 2011), available at and

The Nevada Counties argue that by entering into the 2011 Litigation settlement that prohibits the “warranted, but precluded” option, FWS modified the congressional intent in the ESA. That is, Congress intended that FWS be allowed to determine that the listing of a candidate species is “warranted,” but that there are other species that present more pressing concerns for protection. Moreover, Plaintiffs allege that FWS failed to study the candidate species prior to entering into the settlement, which effectively made listing decisions for all of the targeted species without adequate study. FWS’s answer is due in early February 2015. The 2011 settlement of this litigation by the Administration was a key environmental policy objective so the Nevada challenge bears watching.

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