O’Melveny Worldwide

US Department of Interior Reverses Trump Administration Policy on Incidental Deaths of Migratory Birds

March 30, 2021

On March 8th, 2021, the US Department of Interior withdrew its December 2017 Trump-era determination that the Migratory Bird Treaty Act (“MBTA”) is inapplicable to incidental (non-purposeful) killing of migratory birds. Concurrently, the US Fish and Wildlife Service (“USFWS”) also has indicated that it will likely rescind its 2020 final rule specifying that incidental injury to, or mortality of, migratory birds, is not prohibited by the MBTA, 50 CFR Part §10.14. These actions are being taken at a time where both the new Biden administration climate initiative, which includes the goal of doubling offshore wind energy by 2030, and new regional climate mandates and deadlines like those in California and (newly) in Massachusetts are expected to accelerate the installation of wind farms.

The MBTA prohibits the “take” of migratory birds without a permit. By regulation, the USFWS has defined take to mean “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.”1 Nearly all bird species native to the US or its territories are covered by the MBTA, with the USFWS listing 1,026 species of migratory birds.2 The USFWS estimates that billions of birds are killed in the US each year due to anthropogenic causes, with 2.4 billion birds killed by cats alone. Other causes include collisions with building glass (303.5 million), vehicles (200 million), and power lines (25 million). Moreover, unlike the Endangered Species Act, the MBTA does not provide for the issuance of permits authorizing incidental take. Thus, the scope of the MBTA’s prohibition on taking migratory birds is significant to almost all human activity, and is not limited to what are traditionally considered to be environmentally sensitive industrial sectors.

Following federal prosecutions for the incidental taking of migratory birds beginning in the 1970s, courts have split on whether the MBTA prohibits incidental takes, and, if so, to what extent. The Courts of Appeal for the Fifth, Eighth, and Ninth Circuits have held that the MBTA does not cover incidental takes. For example, in Seattle Audubon Society v. Evans, 952 F.2d 297, 302 (9th Cir. 1991), the Ninth Circuit explained that “taking” as defined in the MBTA “describes physical conduct of the sort engaged in by hunters and poachers,” and, as a result, does not criminalize the death of birds caused by habitat destruction.3

In contrast, the Courts of Appeal for the Second and Tenth Circuits have extended the MBTA to some incidental takes, but have borrowed from tort law to impose limits on its reach.4 For example, in US v. FMC Corp., 572 F.2d 902, 905 (2nd Cir. 1978), the Second Circuit upheld a conviction for birds killed by water contaminated as a result of the defendant corporation’s manufacture of pesticides by analogizing to strict tort liability for extra-hazardous activity, while explaining that “construction that would bring every killing within the statute, such as deaths caused by automobiles, airplanes, plate glass modern office buildings or picture windows in residential dwellings into which birds fly, would offend reason and common sense.”5

It is unclear what the effect of the Biden Administration’s approach to the MBTA will be. In the Fifth, Eighth, and Ninth Circuits the immediate effect is likely to be negligible, as those courts have determined that the MBTA only applies to intentional takes. However, in jurisdictions where the scope of the MBTA has not been similarly limited, federal prosecutions will be at the government’s discretion. Therefore, at least until the Supreme Court resolves the current split among the Courts of Appeal, heavily regulated sectors such as energy, mining, timber, and chemical—which have previously seen prosecutions for incidental take—will face a patchwork of requirements, and will need to carefully consider appropriate actions to address potential impacts to migratory birds based, in part, on the jurisdiction where they operate.

1 50 C.F.R. § 10.12.

2 79 Fed. Reg. 66,845, 65,845 (Nov. 1, 2013).

3 See also, Newton County Wildlife Assoc. v. US Forest Service, 113 F.3d 1110, 114-15 (8th Cir. 1997) (“[s]trict liability may be appropriate when dealing with hunters and poachers… [b]ut it would stretch this 1918 statute far beyond the bounds of reason to construe it as an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds”); US v. CITGO Petroleum Corp., 801 F.3d 477, 488-89 (5th Cir. 2015) (agreeing with Eighth and Ninth Circuits that taking is limited to “deliberate acts done directly and intentionally to migratory birds”).

4 In August 2020, the Federal District Court in Manhattan vacated the Department of Interior’s 2017 opinion. Natural Resources Defense Council v. US Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020).

5 See also, United States v. Apollo Energies, 611 F.3d 679, 686 (10 Cir. 2010) (adopting a proximate-cause standard).

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Junaid Chida, an O'Melveny Partner licensed to practice law in California and New York, Eric Rothenberg, an O'Melveny Of Counsel licensed to practice law in Missouri and New York, and John D. Renneisen, an O'Melveny Senior Counsel licensed to practice law in the District of Columbia, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

© 2021 O’Melveny & Myers LLP. All Rights Reserved. Portions of this communication may contain attorney advertising. Prior results do not guarantee a similar outcome. Please direct all inquiries regarding New York’s Rules of Professional Conduct to O’Melveny & Myers LLP, Times Square Tower, 7 Times Square, New York, NY, 10036, T: +1 212 326 2000.