A Pendulum Seldom Stops in the Middle: Shifting Views on 'Take' of Raptors and Other Migratory Birds

David Freudenthal
07.01.2018
Environmental Law Reporter

Steve Quarles and Rebecca Hays Barho authored the article A Pendulum Seldom Stops in the Middle: Shifting Views on ‘Take’ of Raptors and Other Migratory Birds, along with David Freudenthal, former Governor of Wyoming and U.S. Attorney for the District of Wyoming, for the July 2018 issue of the Environmental Law Institute’s (ELI) Environmental Law Reporter

The Migratory Bird Treaty Act (MBTA) prohibits the taking and killing of migratory birds, but the statute is silent about indirect or unintentional taking or killing that occurs in connection with an otherwise lawful activity.  Dueling DOI Solicitor’s Opinions issued by the Obama and Trump Administrations have only served to highlight the ambiguity in the MBTA’s requirements.  The authors argue that congressional action ultimately is needed.  According to the article, U.S. Fish and Wildlife Service policy and guidance has expanded the MBTA’s terms take and kill to include the concepts of harass, harm, molest, and disturb, which are only expressly found in the Endangered Species Act (ESA) and the Bald and Golden Eagle Protection Act (BGEPA).  These policies significantly impact industries operating on lands controlled or managed by the Bureau of Land Management (BLM).  During the final weeks of the Obama Administration, DOI Solicitor’s Opinion M-37041 provided that the unintentional or incidental take of migratory birds is prohibited under the MBTA.  Later that year, 11 months after Trump’s inauguration, Opinion M-37050 was issued, nullifying the position taken by Opinion M-37041.  But Solicitor’s Opinions are binding only on DOI, not the courts, again leaving the regulated community with no certain path forward.  The courts are also split on the matter, with the Fifth, Eighth, and Ninth Circuits (as well as district courts in the Third and Seventh Circuits) holding that the MBTA prohibits only intentional takings, while the U.S. Courts of Appeals for the Second and Tenth Circuits have found that it extends to unintentional or incidental takings.  The authors maintain, however, that one thing is clear.  Whether the pendulum swings again or stops, they write, the regulated community, federal agencies, and FWS itself would clearly benefit from consistent, long-term interpretation and application of the MBTA.

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