Department of the Interior Legal Counsel Opines that the Migratory Bird Treaty Act Does Not Prohibit Inadvertent Take of Birds

On December 22, 2017, the U.S. Department of the Interior’s Office of the Solicitor issued an opinion that resets its view of the Migratory Bird Treaty Act (the “Act”) and could give developers, renewable energy companies, and other industries regulatory relief and certainty for the inadvertent take of migratory birds.

The Act makes it unlawful “to pursue, hunt, take, capture, kill, attempt to take, capture or kill . . . any migratory bird, any part, nest, or egg of any such bird . . . .”  The U.S. Fish and Wildlife Service regulations implementing the Act define the term “take” as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.”

Despite the Act’s relative clarity and comprehensive listing of prohibited activities, the Act falls short of making clear whether it applies only to affirmative activities that result in the take of migratory birds, such as hunting or poaching, or whether it applies to both affirmative activities and activities that result in inadvertent or accidental take of migratory birds. This distinction is crucial because violations of the Act are criminal offenses.  Depending on whether the offense is viewed as a misdemeanor or a felony, a violation of the Act is punishable by imprisonment of up to two years in prison, a fine of up to $15,000, or both.

Some federal District Courts and Circuit Courts of Appeals have broadly interpreted the Act as applying to activities that result in the accidental, inadvertent, or incidental take of migratory birds.  For those courts, it does not matter under the Act whether an activity, such as a mining operation, results in the accidental take of a migratory bird.  These courts essentially adopt a strict liability approach to violations of the Act.  In other words, it doesn’t matter whether a violator knew its actions would result in the death of a migratory bird – the violator is nonetheless subject to punishment under the Act.

Other courts, most notably our own Ninth Circuit Court of Appeals, have held that the Act was designed to regulate hunting of migratory birds and the sale of their parts, such as feathers, and therefore applies to activities that are intended to harm birds, such as hunting and trapping.  These courts interpret the Act as applying only to deliberate acts done directly and intentionally to migratory birds.  The Ninth Circuit in particular has said that the terms “take” and “kill” as used in the Act mean “physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute’s enactment in 1918.”

The December 22, 2017, Solicitor’s Office opinion supersedes a prior opinion that determined the Act broadly prohibited the taking and killing of migratory birds “by any means and in any manner,” including incidental taking and killing.  The December 22, 2017, opinion takes another look at the Act’s legislative history and interpretive case law, and concludes that the Act is limited to affirmative and purposeful acts, such as hunting and poaching, and thus does not apply to acts that result in only incidental or accidental deaths of migratory birds.  The opinion offers this provocative comment to underscore a point: “Reading the [Act] to capture incidental takings casts an astoundingly large net that potentially transforms the vast majority of average Americans into criminals.”

Of course, this most recent opinion from the Solicitor’s Office is just that – an opinion.  Although arguably it should be accorded a certain level of judicial deference, unlike a legislative enactment, final agency regulation, or a court decision, this opinion does not carry the weight of mandatory authority.  But it suggests that the Department of the Interior agencies enforcing the Act, in particular the U.S. Fish and Wildlife Service, may be more reluctant to prosecute the take of migratory birds under the Act if that take occurs inadvertently or accidentally.  This not-so-subtle nuance is critically important for those industries, such as the wind energy industry, whose actions may result in the inadvertent or accidental taking of migratory birds.

For more information on the Act and this new development, please call or e-mail Scott Birkey, Clark Morrison, or Anne Mudge.

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