The Uncertain Future of Incidental Take Under the Migratory Bird Treaty Act

The Migratory Bird Treaty Act (“MBTA”), despite being over 100 years old, has been the focus of judicial, executive, and legislative action in recent years. 16 U.S.C. §§ 703–712. The result of these actions is that the predictability of interpretation and enforcement risk under the MBTA is a moving target. Most of the activity has focused on determining whether incidental take of migratory birds, eggs, or nests is a violation of the MBTA. Regulatory uncertainty around incidental take continues to be a concern; the MBTA is a strict liability criminal statute, no permit program exists to authorize incidental take, and migratory birds and potential habitats are ubiquitous throughout the United States. The Trump Administration has recently taken action to resolve that uncertainty through the issuance of a Memorandum Opinion. This Memorandum Opinion, however, is not as durable as other legislative, regulatory, or judicial solutions.

Trump M-Opinion and Related Activity

In December of 2017, the U.S. Department of the Interior (“DOI”) Principal Deputy Solicitor, exercising the authority of the Solicitor, issued a Memorandum Opinion, M-37050, entitled “The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.” This Memorandum Opinion (“Trump M-Opinion”) reversed DOI’s longstanding position that the MBTA prohibits non-purposeful “take” of migratory birds, nests, and eggs that occurs incidental to activities. The DOI’s previous position—that the MBTA’s “take” prohibition does extend to incidental take—was most comprehensively enunciated in the January 2017 DOI Memorandum of the prior Solicitor, M-37041 (“Obama M-Opinion”), that DOI issued during the final days of the Obama Administration. Almost immediately after inauguration, the Trump Administration suspended and temporarily withdrew the Obama M-Opinion. Memorandum to the Acting Solicitor of the U.S. Department of the Interior from Acting Secretary of the U.S. Department of the Interior, “Temporary Suspension of Certain Solicitor M-Opinions Pending Review” (Feb. 6, 2017). The Trump M-Opinion fully reversed the DOI’s position with regard to incidental take.

The Trump M-Opinion closely aligns with the most recent Circuit Court of Appeals decision on the topic of whether or not incidental take is prohibited by the MBTA. In 2015, the Fifth Circuit ruled in U.S. v. Citgo Petroleum Corp. that the MBTA prohibits only those acts that are conducted deliberately, directly, and intentionally to migratory birds, and that the MBTA was never intended to criminalize migratory bird deaths caused unintentionally and indirectly. 801 F.3d 477 (5th Cir. 2015). The Trump M-Opinion also takes a comprehensive look at the social context of the MBTA’s genesis, its legislative history, rules of statutory interpretation, and constitutional due process considerations.

Despite providing comprehensive support for its position, the Trump M-Opinion’s lasting impact on enforcement of the MBTA is uncertain. The Trump M-Opinion is a thorough statement of the DOI’s interpretation but is not codified in law or regulation, nor does it resolve the long-standing Circuit split on this issue. Although the DOI’s interpretation of its own statute would certainly be persuasive to courts interpreting and applying the MBTA, a court is not bound to accept DOI’s interpretation as laid out in the Trump M-Opinion. One would expect a court to give the Trump M-Opinion Skidmore deference at best, which is significantly less deferential than Chevron and Auer deference. Without a more durable effort to establish its position, the Trump M-Opinion can be suspended or withdrawn as quickly as was the Obama M-Opinion during the next change in administrations. 

It is possible that legislative or regulatory action will yet be taken during this administration to more strongly solidify the interpretation that the MBTA does not extend to incidental take. On the legislative side, an amendment added by Rep. Liz Cheney (R-WY) to the “SECURE American Energy Act” (H.R. 4239) would clarify that the MBTA does not prohibit incidental take. H.R. 4239 has been reported from the House Natural Resources Committee but has not yet been scheduled for floor action. The DOI could also elect to promulgate a regulation clearly defining the MBTA “take” prohibition to be limited to direct, purposeful “take.” It is also possible that this issue of statutory interpretation could eventually reach the U.S. Supreme Court, if DOI were to finalize a regulation that was subsequently challenged or if another Circuit Court of Appeals were to hear a challenge of an enforcement action for incidental take, prompting the Supreme Court to resolve the Circuit split.

Other executive branch documents influence MBTA policy and impact the risk of MBTA enforcement irrespective of the Trump M-Opinion or the Obama M-Opinion. Most notably, at the end of the Clinton Administration in 2001, President Clinton issued Executive Order 13186 on migratory birds, “Responsibilities of Federal Agencies to Protect Migratory Birds” (“Clinton EO”), which directed federal agencies that are likely to have a measurable negative effect on migratory bird populations to develop and implement Memoranda of Understanding (“MOUs”) with the U.S. Fish and Wildlife Service (“USFWS”) to promote conservation of migratory bird populations. Although the Clinton EO did not change the MBTA definition of “take” to include incidental take, its implication is that impacts to migratory birds that occur incidentally are regulated by the MBTA.

While the Clinton EO and resultant MOUs extend solely to federal agencies, the MOUs can impact public and private projects requiring funding or approvals from those federal agencies. For example, the Federal Energy Regulatory Commission (“FERC”) developed an MOU with USFWS under the Clinton EO which commits FERC, where appropriate, to require avoidance and minimization measures and mitigation for migratory bird impacts. Only eleven federal agencies are listed as having established MOUs consistent with the Clinton EO. Neither the Federal Highway Administration (“FHWA”) nor the U.S. Department of Transportation (“USDOT”) is included among those agencies.

Transportation Agencies and the MBTA

Federal and state transportation agencies have the potential to impact migratory birds, nests, or eggs as a result of roadway construction, maintenance projects, and regular right-of-way (“ROW”) maintenance. While DOI’s current position is that the MBTA “take” prohibition does not extend to incidental take resulting from unintentional or indirect impacts, neither Citgo nor the Trump M-Opinion speak explicitly to whether the deliberate clearing of trees and vegetation during nesting season when the presence of nests is not verified would constitute “take” under the MBTA. Notably, the MBTA provides a permit pathway for active nest removal where nests will be deliberately possessed or destroyed while the nests are active. 50 C.F.R. § 21.27. Deliberate actions such as clearing land or engaging in roadway construction or ROW maintenance that impact migratory birds, eggs, or nests do not have as their purpose any impacts on migratory birds and are arguably incidental in nature. That said, arguments to the contrary and associated enforcement risks remain. Unless and until the Supreme Court resolves the Circuit split or legislation clarifies the meaning of the MBTA “take” prohibition, the regulatory certainty for project proponents is higher in Circuits that have held that incidental take is not prohibited by the MBTA (5th, 8th, 9th), than it is in Circuits that have ruled otherwise (2nd, 10th) or have not ruled on the issue.

Enforcement based upon incidental take is not anticipated to be a priority during the Trump administration, consistent with the Trump M-Opinion. However, the time horizons of many projects’ financing and operations will extend long beyond the current administration. Therefore potential fluctuations in interpretation (and any future M-Opinions on the subject) bear upon calculations of enforcement risk in various parts of the country. Although unlikely to occur during the current administration, should FHWA or USDOT develop MOUs with USFWS pursuant to Clinton EO, then migratory bird considerations could arise independent of and despite the Trump M-Opinion. While the Trump M-Opinion makes clear that DOI’s enforcement priorities are not focused on incidental take under the MBTA, without a more durable legislative, judicial, or regulatory action, that position could quickly change when the political climate shifts, leaving longer term projects still in enforcement limbo.