The Nickel Report

The controversy continues over the scope of the take prohibition under the Migratory Bird Treaty Act (MBTA). As we noted here, the Solicitor’s Office for the US Department of the Interior (DOI) issued an opinion in late 2017 concluding that the MBTA does not prohibit the incidental take of migratory birds. Although this conclusion was consistent with the holdings of at least two US Circuit Courts of Appeal, the Solicitor’s Opinion came under immediate fire from conservation groups and several former government officials. In May of this year, two environmental groups filed lawsuits in federal court challenging the Opinion. In a court filing earlier this month, the government stated its intention to move to dismiss these suits based on several threshold grounds, such as whether the Opinion is a final agency action subject to judicial review. These lawsuits inject fresh uncertainty into an area of the law that DOI sought to clarify.

Background and Recent Developments

The MBTA, a criminal statute enacted in 1918, makes it illegal for any person to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, … ship, … transport, … carry, … receive … at any time, or in any manner, any migratory bird, … or any part, nest, or egg of any such bird.” 16 U.S.C. § 703. The statute protects over 1,000 bird species, including approximately 90 percent of all birds occurring in North America and many common species. For many years, the US Fish and Wildlife Service (USFWS), the agency within DOI responsible for enforcing the MBTA, took the position that any human activity which resulted in the death of protected migratory birds could be prosecuted as a misdemeanor under the MBTA, even if the death of the bird was unintended.

The DOI Solicitor’s Office issued a legal opinion on January 10, 2017, during the final days of the Obama administration, formally expressing that view. Less than a month later, on February 6, 2017, the Solicitor’s office issued an order suspending and temporarily withdrawing the January opinion and eventually issued a new opinion on December 22, 2017, concluding that the MBTA take prohibition applies only to “direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control,” and does not apply to a take that is incidental to an otherwise lawful action that results—even directly and foreseeably—in the death of a protected bird.

On April 11, 2018, the Principal Deputy Director of USFWS issued a memorandum offering guidance to USFWS personnel “to clarify what constitutes prohibited take, what actions must be taken when conducting lawful intentional take . . ., and what changes to prior practice should be made in light of the [December 2017 legal opinion].” The guidance memorandum states that “the MBTA’s prohibitions on take apply when the purpose of an action is to take migratory birds, their eggs, or their nests” and that “[c]onversely, the take of birds, eggs or nests occurring as a result of an activity, the purpose of which is not to take birds, eggs or nests, is not prohibited by the MBTA.” An attachment to the opinion, providing responses to “Frequently Asked Questions” regarding USFWS’s implementation of the opinion, addresses (among other things) “the distinction between intent to take a bird versus knowing a bird will be [injured or killed as a result of an activity].” This attachment provides several examples of situations that USFWS may encounter, and explains the reasons why the actors in each situation would or would not be interpreted as violating the MBTA. In one example, USFWS explains that a landowner who destroys an old barn, knowing that owls that are nesting in the barn will die during the barn’s destruction, will not have violated the MBTA because a landowner’s purpose in destroying a barn will almost always be removal of the barn. In another example, USFWS explains that a homeowner who lights a fire knowing that Chimney Swifts are nesting in his chimney will have violated the MBTA if USFWS finds that he lit the fire for the purpose of destroying the swifts’ nests, but will not have violated the MBTA if USFWS finds that he lit the fire to heat his house. This example highlights the subjective nature of the legal standard under the December 2017 legal opinion. For take associated with most business activities, for example, the operation of a wind farm or a commercial aircraft, it may be fair to presume that the purpose of the activity was not to take migratory birds.

In May 2018, USFWS published an announcement in the Federal Register stating that, based on the December 2017 legal opinion, “no further action will be taken in regard to [a] notice of intent [published in 2015 under the Obama administration] to prepare . . . a programmatic environmental impact statement . . . pursuant to the National Environmental Policy Act [NEPA] to evaluate the potential environmental impacts of a proposed rule to authorize incidental take of migratory birds under the [MBTA].” 83 Fed. Reg. 24080 (May 24, 2018).

Lawsuit Challenging December 2017 Legal Opinion

On May 24, 2018, environmental groups filed two actions in the US District Court for the Southern District of New York, against DOI, USFWS and the DOI lawyer who authored the December 2017 legal opinion. National Audubon Soc’y et al. v. U.S. Dep’t of the Interior et al., Case 1:18-cv-04601 (filed May 24, 2018) (S.D.N.Y.); Natural Resources Def. Council et al. v. U.S. Dep’t of the Interior et al., Case No. 1:18-cv-04596 (filed May 24, 2018) (S.D.N.Y.).

In both actions, the plaintiffs assert that the position expressed in the DOI opinion, that the MBTA prohibits only intentional take, is contrary to the plain language and fundamental purpose of the MBTA and reverses longstanding practice and policy, including decades of enforcement and mitigation efforts to avoid or limit incidental take under the MBTA. Plaintiffs in the Audubon Action also allege that DOI adopted the December 2017 legal opinion without any advance notice to the public or opportunity for public comment, as required by the Administrative Procedure Act (APA), and without complying with NEPA. Both suits seek a declaration that the adoption and implementation of the December 2017 opinion exceeds the agency’s statutory authority and is arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law. Plaintiffs request that the court vacate the December 2017 opinion and declare that the government revert to the prior interpretation and policy, as expressed in the January 2017 opinion issued under the Obama administration.

On July 5, 2018, the US Department of Justice (DOJ) and counsel for environmental group plaintiffs filed a joint letter in both cases to advise the court that government defendants “intend to move to dismiss the complaint[s] based on . . . threshold issues.” Specifically, DOJ will argue that (i) the December 2017 legal opinion “is not a ‘final agency action’ within the meaning of 5 U.S.C. § 704, and therefore is not subject to review under the APA,” (ii) plaintiffs’ “claims are not ripe for review, and therefore . . . the Court lacks subject matter jurisdiction”, and (iii) plaintiffs in both actions “failed to adequately allege facts sufficient to demonstrate that they have standing to pursue their claims.” In the Audubon Action, DOJ will also argue that DOI was not obligated to conduct notice-and-comment rulemaking under the APA because the opinion did not constitute a rulemaking within the meaning of that statute and that plaintiffs’ NEPA claim should be dismissed because NEPA does not provide a private right of action independent of an APA claim. The joint letter also states that “[a]ll parties in the [Audubon Action] and all parties in the NRDC Action agree that the two cases should proceed in a coordinated manner, particularly with respect to the briefing of the defendants’ contemplated motions to dismiss both actions and any potential future motions for summary judgment.” Under the parties’ proposed schedule, the government defendants would file a single motion to dismiss both actions by August 17, 2018, plaintiffs in the Audubon Action and the NRDC Action would file separate oppositions by October 17, 2018, and government defendants would file a single reply by November 20, 2018. Following a pre-trial conference held on July 13, 2018, the court issued an order adopting parties’ proposed briefing schedule.

Implications

At least for now, persons undertaking any of the numerous lawful activities that may result in incidental take of migratory birds, including operation of wind energy facilities, can continue to breathe a little easier. However, they must still avoid taking species listed as threatened or endangered under the Endangered Species Act and avoid taking eagles protected under the Bald and Golden Eagle Protection Act (BGEPA), except as authorized by a take permit. In practice, many companies continue to implement avian protection plans designed to avoid and reduce risks to migratory birds and other avian species.

As the competing DOI legal interpretations demonstrate, the interpretation of the MBTA’s take prohibition may be subject to change again under a future administration facing pressure from conservation groups. Thus, while the interpretation expressed in DOI’s December 2017 legal opinion provides some reprieve for companies engaged in activities likely to result in incidental take of birds, uncertainty will remain—particularly with respect to projects with a useful life that extends beyond 2020—unless and until Congress takes action to clarify the scope of the MBTA’s prohibition. And no such legislative fix appears to be on the horizon.