(The following article was published by the Environment, Energy, and Resources Section of American Bar Association in October of 2018.)
The Migratory Bird Treaty Act of 1918 (MBTA) has been a pillar of American conservation law for over 100 years. See 16 U.S.C. §§ 703–712. Originally enacted to end market hunting, the MBTA has proven to be an effective means of protecting bird populations. But over time, the threats to migratory birds have evolved to collisions, drownings, and habitat loss stemming from development. Ambiguity in the MBTA’s language, however, has created uncertainty over its applicability to these new threats, including those resulting from mining, oil and gas, and renewable energy projects on public land. Meanwhile, a recent shift in federal enforcement policy has brought renewed focus regarding the MBTA’s scope and applicability to such projects.
The MBTA traces its history back to the early 20thCentury when market hunters decimated many bird species for table fare and fashion accessories. As bird numbers plummeted, concerned individuals demanded a halt to these activities and a remedy to ineffective state laws. This call for action coincided with a larger awaking among Americans to conservation issues and an understanding that public natural resources are held in trust for all to enjoy.
Congress responded in 1900 with the Lacey Act, which is considered the first federal law protecting wildlife. See 16 U.S.C. §§ 3371–3378. In 1913, John W. Weeks, a member of the U.S. House of Representatives, sponsored the Weeks-McLean Migratory Bird Act. This law was intended to prohibit unchecked market hunting and the illegal transportation of migratory birds between states. It was an important step in the overall process of protecting migratory birds. However, states-rights supporters soon challenged the constitutionality of this law and prevented its implementation.
In response, conservation leaders pushed for using the federal treaty-making power to solidify the protection of migratory birds. After considerable effort, the United States signed the Convention for the Protection of Migratory Birds with Great Britain (on behalf of Canada) in 1916 to establish oversight of migratory species and to provide a framework for protection. Congress then passed the MBTA to implement and codify the conventions. See 16 U.S.C. § 712. In doing so, it ushered in a new era of conservation legislation. Congress went on to amend the MBTA to incorporate terms from subsequent treaties with Mexico, Japan, and Russia.
The MBTA provides in part that unless otherwise authorized, it’s illegal to pursue, hunt, take, capture, kill, possess, sell, purchase, or transport any migratory bird by any means or manner. See 16 U.S.C. § 703. This includes any part, nest, or egg of such bird. Seeid. It does not, however, apply to non-native or introduced species. See id. The MBTA originally prescribed strict liability for infractions. Over time, however, Congress amended the MBTA to include separate misdemeanor and felony charges; the felony charges are tied to “knowingly” taking or selling migratory birds. 16 U.S.C. § 707.
The U.S. Fish and Wildlife Service (Fish and Wildlife) administers the MBTA, which currently protects 1,027 species of birds. SeeMigratory Bird Treaty Act Protected Species (10.13 List), https://www.fws.gov/birds/management/managed-species/migratory-bird-treaty-act-protected-species.php. Fish and Wildlife periodically updates this list of birds, with the most recent update occurring in 2013. Early on, Fish and Wildlife focused its MBTA enforcement actions on activities intended to harm birds, such as hunting and trapping. As society progressed, however, so too did the threats to migratory birds. According to Fish and Wildlife, millions of migratory birds now perish from drownings in mining waste pits and collisions with electric lines, communications towers, buildings, and wind turbines. See Threats to Birds, https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php.
Beginning in the 1970’s, Fish and Wildlife and the Department of Justice began focusing on bird deaths resulting from these new sources and reviewing the activities of oil, gas, timber, mining, chemical, and electricity companies. This signaled a fundamental shift in enforcement policy: Fish and Wildlife would now pursue individuals and companies for activity which incidentally resulted in the death of migratory birds, including projects on public land. This policy was further expanded in 2001 when President Clinton issued Executive Order No. 13186 which requires federal agencies “taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations” to develop agreements with Fish and Wildlife to conserve those birds. SeeResponsibilities of Federal Agencies to Protect Migratory Birds, https://www.epa.gov/sites/production/files/2015-03/documents/eo13186.pdf. These include agency regulatory actions such as permits issued by the Bureau of Land Management. Recently, Fish and Wildlife has pursued enforcement actions against developers of wind turbine projects that resulted in migratory bird deaths.
Nevertheless, Fish and Wildlife for the most part has taken a proactive enforcement approach. It has allowed companies to identify and adopt best management practices to reduce migratory bird deaths before pursuing enforcement actions. These practices often include covering oil pits, placing wind turbines away from bird travel corridors, and properly spacing power lines. To assist in this process, Fish and Wildlife has issued guidelines for various industries (“Guidelines”), including several related to the siting of wind turbines and communications towers. See Guidance Documents, https://www.fws.gov/birds/management/project-assessment-tools-and-guidance/guidance-documents.php. These guidelines are particularly applicable to project developers working on public lands and requiring federal permits.
Fish and Wildlife’s enforcement authority, however, has been challenged in federal court. These courts have analyzed whether the MBTA applies only to conduct such as hunting and poaching and not “accidental” or “incidental” activity (i.e. takings) such as wind turbine collisions. By way of comparison, the Endangered Species Act and its corresponding regulations provide a broad definition of “take” which includes “harass” and “harm.” 16 U.S.C. § 1532(19). Regarding the MBTA, Fish and Wildlife has defined “take” as “to pursue, hunt, shoot, wound, kill, trap capture or collect.” 50 C.F.R. §10.12. Further complicating matters, the MBTA does not allow permits for incidental takes, which may be particularly useful for renewable energy projects, oil and gas exploration and mining activities.
As a result, some federal courts have analyzed the language of the MBTA and its Congressional purpose and concluded that it only applies to activities intended to harm birds, such as hunting and trapping. See United States v. Brigham Oil and Gas L.P., 840 F.Supp.2d 1202 (2012); United States v. CITGO Petroleum Corporation, 801 F.3rd 477 (2015). Others, meanwhile, have ruled that mortality by “any means and in any manner” includes incidental taking and killing. See United States v. Moon Lake Electric Association, Inc., 45 F.Supp.2d 1070 (1999); United States v. Apollo Energies, Inc., 611 F.3d 679 (2010).
Recently, the Department of the Interior (DOI) announced a reversal of its policy that the MBTA applies to incidental takes of migratory birds. In a memorandum issued in December of 2017 (“Memorandum”), the DOI raised concerns about prosecution of otherwise lawful conduct and announced that the MBTA only applies to “affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.” M-37050, Migratory Bird Treaty Act Does Not Prohibit Incidental Take, https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf. According to the memorandum, these actions do not include “incidental or accidental taking through lawful commercial activity.” Id.
Several environmental organizations, including the National Audubon Society and the National Resources Defense Council, objected to this change in policy and wasted little time filing suit against the DOI in federal court. These organizations allege that DOI’s actions are arbitrary and capricious and violate the Administrative Procedure Act. Eight attorneys general also recently filed suit against the DOI in an attempt to reverse this new policy. Meanwhile, proponents of the change counter that the prior policy cast too broad a net over otherwise lawful activity. Within the Memorandum, the DOI also notes that even if industry and project developers comply with the Guidelines, the door to prosecution remains open thereby providing no certainty to the process.
Given the court split and general uncertainty surrounding the MBTA, further appeals seem likely. There is even a chance the Supreme Court will agree to hear a case regarding its scope. But a legislative remedy by Congress that formalizes mitigation procedures, clarifies the applicability of the MBTA to incidental and accidental activities, and establishes a permitting process could provide certainty to regulated parties. These measures could incentivize private investment in conservation measures pursuant to development projects, including those on public lands. With such a tune up, the MBTA can remain the bedrock of migratory bird conservation for the next 100 years.