Brooke Marcus Wahlberg Comments on MBTA Ruling

08.12.2020
Bloomberg Law

Brooke Marcus Wahlberg was quoted in the Bloomberg Law article, “Migratory Bird Rule Expected To Proceed Despite Court Defeat” (subscription required). The article examines the recent ruling by the U.S. District Court for the Southern District of New York, which struck down a Memorandum Opinion (M-Opinion) that includes an interpretation of the Migratory Bird Treaty Act (MBTA) written by Interior Solicitor Daniel Jorjani. The M-Opinion took the position that the MBTA’s prohibitions do not extend to unintentional (or indirect) death or injury of migratory birds. This M-Opinion, issued in 2017, reversed a precedent that applied the rule to both unintentional and intentional killings of migratory birds. Currently, the U.S. Fish and Wildlife Service is processing a rule that would codify the position taken in the M-Opinion.

Commenting on the matter, Brooke said that she doesn’t think the decision will stop Interior from moving forward with the rule. “Interior has made it clear that finalizing the MBTA rule is a top priority prior to the general election, and it would be unsurprising if it continued with the rulemaking.” She added that, “It has always been inevitable that the proposed rule would be challenged in court if finalized, and [this] ruling doesn’t change that.”

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