In the closing weeks of 2017, the United States Department of Interior ("DOI") issued a memorandum that narrowly interprets the scope of a key federal law protecting over 1,000 bird species.

The memorandum concludes the Migratory Bird Treaty Act ("MBTA") only applies to affirmative actions that have the purpose of taking or killing migratory birds, their nests, or their eggs, such as hunting or poaching. This memorandum is important because it reverses the DOI's prior legal opinion. That opinion concluded that the MBTA also prohibits "incidental taking and killing" of migratory birds-including even unintentional bird deaths as a result of an "otherwise lawful" activity. 

The MBTA states that "it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill . . . any migratory bird, any part, nest, or egg of any such bird." Before the DOI's most recent memorandum was issued, the U.S. Fish and Wildlife Service ("FWS"), which is responsible for enforcing the MBTA, interpreted this provision to include "taking or killing migratory birds that directly and foreseeably results from, but is not the purpose of, an activity" (an "incidental take"), and not just intentional taking or killing. 

The DOI memorandum recognizes that courts have taken different views on whether or not the MBTA prohibits incidental take. The Fifth, Eighth, and Ninth Circuits have held that the MBTA does not prohibit incidental take, while the Second and Tenth Circuits have held the opposite, saying that the MBTA "criminalizes some instances of incidental take." 

The memorandum adopts the interpretation that the MBTA does not prohibit incidental take. The DOI analyzed the text of the MTBA, its history, and its purpose in reaching its conclusion that it was not Congress's intent to criminalize "otherwise lawful conduct" that could incidentally result in the taking or killing of a migratory bird. For example, the DOI concludes that the MBTA did not originally reach incidental takes in part because the MBTA was originally part of Congress's attempt, during the late 19th century and early 20th centuries, to regulate hunting, which had led to extremely low migratory bird populations. 

The DOI memorandum observes that the scope of incidental take liability is "virtually unlimited" and further notes that the MBTA does not effectively set clear guidelines for officials and prosecutors to follow while implementing the law. Thus, the memorandum concludes that the MBTA has become a strict liability statute and presents the opportunity for "arbitrary and discriminatory enforcement." 

Under the current administration, the memorandum will likely reduce the number of MBTA enforcement actions involving industry sectors or activities that have historically involved significant avian incidental take (e.g. wind generation, solar farms, electricity transmission, communication towers, etc.). This opinion, however, could be revoked or replaced by the next administration, which leaves uncertainty in the interpretation and application of the MBTA. Long term certainty would require legislative action or FWS rulemaking.  

The members of our Land Development, Zoning & Environmental Practice Group have extensive experience in advising clients on permitting and enforcement issues related to protected species. We will continue to monitor how this memorandum is implemented and interpreted.  For more information, please contact us .