[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Proposed Rules]
[Pages 5915-5926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01771]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 10
[Docket No. FWS-HQ-MB-2018-0090; FF09M29000-156-FXMB1232090BPP0]
RIN 1018-BD76
Regulations Governing Take of Migratory Birds
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (FWS, Service, we),
propose to adopt a regulation that defines the scope of the Migratory
Bird Treaty Act (MBTA or Act) as it applies to conduct resulting in the
injury or death of migratory birds protected by the Act. This proposed
rule is consistent with the Solicitor's Opinion, M-37050, which
concludes that the MBTA's prohibitions on pursuing, hunting, taking,
capturing, killing, or attempting to do the same, apply only to actions
directed at migratory birds, their nests, or their eggs.
DATES: We will accept written comments on this proposed rule until
March 19, 2020.
ADDRESSES: You may submit comments by either one of the following
methods. Please do not submit comments by both.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-HQ-
MB-2018-0090.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-HQ-MB-2018-0090; U.S. Fish and Wildlife Service; MS: JAO/1N;
5275 Leesburg Pike, Falls Church, VA 22041-3803.
We will not accept email or faxes. We will post all comments on
http://www.regulations.gov, including any personal information you
provide. See Public Comments, below, for more information.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director,
Migratory Birds, at 202-208-1050.
SUPPLEMENTARY INFORMATION:
Background
The Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703 et seq.) was
enacted in 1918 to help fulfill the United States' obligations under
the 1916 ``Convention between the United States and Great Britain for
the protection of Migratory Birds.'' 39 Stat. 1702 (Aug. 16, 1916)
(ratified Dec. 7, 1916) (Migratory Bird Treaty). The list of applicable
migratory birds protected by the MBTA is currently codified in title 50
of the Code of Federal Regulations at 50 CFR 10.13.
In its current form, section 2(a) of the MBTA provides that, unless
permitted by regulations, it is unlawful:
at any time, by any means or in any manner, to pursue, hunt, take,
capture, kill, attempt to take, capture, or kill, possess, offer for
sale, sell, offer to barter, barter, offer to purchase, purchase,
deliver for shipment, ship, export, import, cause to be shipped,
exported, or imported, deliver for transportation, transport or
cause to be transported, carry or cause to be carried, or receive
for shipment, transportation, carriage, or export, any migratory
bird, any part, nest, or egg of any such bird, or any product,
whether or not manufactured, which consists, or is composed in whole
or part, of any such bird or any part, nest, or egg thereof.
16 U.S.C. 703(a).
Section 3(a) of the MBTA authorizes and directs the Secretary of the
Interior
[[Page 5916]]
to ``adopt suitable regulations'' allowing ``hunting, taking, capture,
killing, possession, sale, purchase, shipment, transportation,
carriage, or export of any such bird, or any part, nest, or egg
thereof'' while considering (``having due regard to'') temperature
zones and ``distribution, abundance, economic value, breeding habits,
and times and lines of migratory flight of such birds.'' 16 U.S.C.
704(a). Section 3(a) also requires the Secretary to ``determine when,
to what extent, if at all, and by what means, it is compatible with the
terms of the conventions'' to adopt such regulations allowing these
otherwise-prohibited activities. Id.
On December 22, 2017, the Principal Deputy Solicitor of the
Department of the Interior, exercising the authority of the Solicitor
pursuant to Secretary's Order 3345, issued a legal opinion, M-37050,
``The Migratory Bird Treaty Act Does Not Prohibit Incidental Take'' (M-
37050 or M-Opinion). This opinion thoroughly examined the text,
history, and purpose of the MBTA and concluded that the MBTA's
prohibitions on pursuing, hunting, taking, capturing, killing, or
attempting to do the same apply only to actions that are directed at
migratory birds, their nests, or their eggs. This opinion is consistent
with the Fifth Circuit's recent decision in United States v. CITGO
Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), which examined whether
the MBTA prohibits incidental take. It also marked a change from prior
U.S. Fish and Wildlife Service interpretations and an earlier
Solicitor's Opinion, M-37041, ``Incidental Take Prohibited Under the
Migratory Bird Treaty Act.'' The Office of the Solicitor performs the
legal work for the Department of the Interior, including the U.S. Fish
and Wildlife Service (hereafter ``Service''). The Service is the
Federal agency delegated the primary responsibility for managing
migratory birds.
This proposed rule addresses the Service's responsibilities under
the MBTA. Consistent with M-37050, the Service proposes to adopt a
regulation defining the scope of the MBTA's prohibitions to reach only
actions directed at migratory birds, their nests, or their eggs.
Provisions of the Proposed Rule
Scope of the Migratory Bird Treaty Act
As a matter of both law and policy, the Service proposes to codify
M-37050 in a regulation defining the scope of the MBTA. M-37050 is
available on the internet at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090; and at https://www.doi.gov/solicitor/opinions.
As described in M-37050, the text and purpose of the MBTA indicate
that the MBTA's prohibitions on pursuing, hunting, taking, capturing,
killing, or attempting to do the same only criminalize actions that are
specifically directed at migratory birds, their nests, or their eggs.
The relevant portion of the MBTA reads, ``it shall be unlawful at
any time, by any means or in any manner, to pursue, hunt, take,
capture, kill, attempt to take, capture, or kill . . . any migratory
bird, [or] any part, nest, or egg of any such bird.'' 16 U.S.C. 703(a).
Of the five referenced verbs, three--pursue, hunt, and capture--
unambiguously require an action that is directed at migratory birds,
nests, or eggs. To wit, according to the entry for each word in a
contemporary dictionary:
Pursue means ``[t]o follow with a view to overtake; to
follow eagerly, or with haste; to chase.'' Webster's Revised Unabridged
Dictionary 1166 (1913);
Hunt means ``[t]o search for or follow after, as game or
wild animals; to chase; to pursue for the purpose of catching or
killing.'' Id. at 713; and
Capture means ``[t]o seize or take possession of by force,
surprise, or stratagem; to overcome and hold; to secure by effort.''
Id. at 215.
Thus, one does not passively or accidentally pursue, hunt, or capture.
Rather, each requires a deliberate action specifically directed at
achieving a goal.
By contrast, the verbs ``kill'' and ``take'' could refer to active
or passive conduct, depending on the context. See id. at 813 (``kill''
may mean the more active ``to put to death; to slay'' or serve as the
general term for depriving of life); id. at 1469 (``take'' has many
definitions, including the more passive ``[t]o receive into one's hold,
possession, etc., by a voluntary act'' or the more active ``[t]o lay
hold of, as in grasping, seizing, catching, capturing, adhering to, or
the like; grasp; seize;--implying or suggesting the use of physical
force'').
Any ambiguity inherent in the statute's use of the terms ``take''
and ``kill'' is resolved by applying established rules of statutory
construction. First and foremost, when any words ``are associated in a
context suggesting that the words have something in common, they should
be assigned a permissible meaning that makes them similar.'' Antonin
Scalia & Bryan A. Garner, Reading the Law: The interpretation of Legal
Texts, 195 (2012); see also Third Nat'l Bank v. Impac, Ltd., 432 U.S.
312, 321 (1977) (``As always, `[t]he meaning of particular phrases must
be determined in context' . . . .'' (quoting SEC v. Nat'l Sec., Inc.,
393 U.S. 453, 466 (1969)); Beecham v. United States, 511 U.S. 368, 371
(1994) (the fact that ``several items in a list share an attribute
counsels in favor of interpreting the other items as possessing that
attribute as well''). Section 2 of the MBTA groups together five
verbs--``pursue,'' ``hunt,'' ``take,'' ``capture,'' and ``kill.''
Accordingly, the statutory construction canon of noscitur a sociis
(``it is known by its associates'') counsels in favor of reading each
verb to have a related meaning. See Scalia & Garner at 195 (``The canon
especially holds that `words grouped in a list should be given related
meanings.' '' (quoting Third Nat'l Bank, 432 U.S. at 322)).
Thus, when read together with the other active verbs in section 2
of the MBTA, the proper meaning is evident. The operative verbs
(``pursue, hunt, take, capture, kill'') ``are all affirmative acts . .
. which are directed immediately and intentionally against a particular
animal--not acts or omissions that indirectly and accidentally cause
injury to a population of animals.'' Sweet Home, 515 U.S. at 719-20
(Scalia, J., dissenting) (agreeing with the majority opinion that
certain terms in the definition of the term ``take'' in the Endangered
Species Act (ESA)--identical to the other prohibited acts referenced in
the MBTA--refer to deliberate actions, while disagreeing that the use
of the additional definitional term ``harm''--used only in the ESA--
meant that ``take'' should be read more broadly to include actions not
deliberately directed at covered species); see also United States v.
CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. 2015) (``Even
if `kill' does have independent meaning [from `take'], the Supreme
Court, interpreting a similar list in the [Endangered Species Act],
concluded that the terms pursue, hunt, shoot, wound, kill, trap,
capture, and collect, generally refer to deliberate actions''); cf.
Sweet Home, 515 U.S. at 698 n.11 (Congress's decision to specifically
define ``take'' in the ESA obviated the need to define its common-law
meaning).
Accordingly, it is reasonable to conclude that the MBTA's
prohibition on killing is similarly limited to deliberate acts that
result in bird deaths. See Newton County Wildlife Ass'n v. U.S. Forest
Serv., 113 F.3d 110, 115 (8th Cir. 1997) (``MBTA's plain language
prohibits conduct directed at migratory birds . . . . [T]he ambiguous
terms `take' and `kill' in 16 U.S.C. 703 mean `physical conduct of the
sort engaged in by hunters and poachers . . . .' ''
[[Page 5917]]
(quoting Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302 (9th Cir.
1991))); United States v. Brigham Oil & Gas, 840 F. Supp. 2d 1202, 1208
(D.N.D. 2012) (``In the context of the Act, `take' refers to conduct
directed at birds, such as hunting and poaching, and not acts or
omissions having merely the incidental or unintended effect of causing
bird deaths''). This conclusion is also supported by the U.S. Fish and
Wildlife Service's implementing regulations, which define ``take'' to
mean ``to pursue, hunt, shoot, wound, kill, trap, capture, or collect''
or attempt to do the same. 50 CFR 10.12. The component actions of
``take'' involve direct and purposeful actions to reduce animals to
human control. As such, they ``reinforce [ ] the dictionary definition,
and confirm [ ] that `take' does not refer to accidental activity or
the unintended results of other conduct.'' Brigham Oil & Gas, 840 F.
Supp. 2d at 1209. This interpretation does not render the words
``take'' and ``kill'' redundant since each has its own discrete
definition; indeed, one can hunt or pursue an animal without either
killing it or taking it under the definitions relevant at the time the
MBTA was enacted.
Furthermore, the notion that ``take'' refers to an action directed
immediately against a particular animal is supported by the use of the
word ``take'' in the common law. As the Supreme Court has instructed,
``absent contrary indications, Congress intends to adopt the common law
definition of statutory terms.'' United States v. Shabani, 513 U.S. 10,
13 (1994). As Justice Scalia noted, ``the term [`take'] is as old as
the law itself.'' Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting).
For example, the Digest of Justinian places ``take'' squarely in the
context of acquiring dominion over wild animals, stating:
[A]ll the animals which can be taken upon the earth, in the sea,
or in the air, that is to say, wild animals, belong to those who
take them. . . . Because that which belongs to nobody is acquired by
the natural law by the person who first possesses it. We do not
distinguish the acquisition of these wild beasts and birds by
whether one has captured them on his own property [or] on the
property of another; but he who wishes to enter into the property of
another to hunt can be readily prevented if the owner knows his
purpose to do so.
Geer v. Connecticut, 161 U.S. 519, 523 (1896) (quoting Digest, Book
41, Tit. 1, De Adquir. Rer. Dom.). Likewise, Blackstone's Commentaries
provide:
A man may lastly have a qualified property in animals feroe
naturoe, propter privilegium, that is, he may have the privilege of
hunting, taking and killing them in exclusion of other persons. Here
he has a transient property in these animals usually called game so
long as they continue within his liberty, and may restrain any
stranger from taking them therein; but the instant they depart into
another liberty, this qualified property ceases.
Id. at 526-27 (1896) (quoting 2 Blackstone Commentary 410). Thus,
under common law ``[t]o `take,' when applied to wild animals, means to
reduce those animals, by killing or capturing, to human control.''
Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting); see also CITGO,
801 F.3d at 489 (``Justice Scalia's discussion of `take' as used in the
Endangered Species Act is not challenged here by the government . . .
because Congress gave `take' a broader meaning for that statute.''). As
is the case with the ESA, in the MBTA, ``[t]he taking prohibition is
only part of the regulatory plan . . ., which covers all stages of the
process by which protected wildlife is reduced to man's dominion and
made the object of profit,'' and, as such, is ``a term of art deeply
embedded in the statutory and common law concerning wildlife'' that
``describes a class of acts (not omissions) done directly and
intentionally (not indirectly and by accident) to particular animals
(not populations of animals).'' Sweet Home, 515 U.S. at 718 (Scalia,
J., dissenting). The common-law meaning of the term ``take'' is
particularly important here because, unlike the ESA, which specifically
defines the term ``take,'' the MBTA does not define ``take''--instead
it includes the term in a list of similar actions. Thus, the Sweet Home
majority's ultimate conclusion that Congress's decision to define
``take'' in the ESA obviated the need to divine its common-law meaning
is inapplicable here. See id. at 697, n.10. Instead, the opposite is
true.
A number of courts, as well as the prior M-Opinion, have focused on
the MBTA's direction that a prohibited act can occur ``at any time, by
any means, in any manner'' to support the conclusion that the statute
prohibits any activity that results in the death of a bird, which would
necessarily include incidental take. However, the quoted statutory
language does not change the nature of those prohibited acts and simply
clarifies that activities directed at migratory birds, such as hunting
and poaching, are prohibited whenever and wherever they occur and
whatever manner is applied, be it a shotgun, a bow, or some other
creative approach to deliberately taking birds. See generally CITGO,
801 F.3d at 490 (``The addition of adverbial phrases connoting `means'
and `manner,' however, does not serve to transform the nature of the
activities themselves. For instance, the manner and means of hunting
may differ from bowhunting to rifles, shotguns, and air rifles, but
hunting is still a deliberately conducted activity. Likewise, rendering
all-inclusive the manner and means of `taking' migratory birds does not
change what `take' means, it merely modifies the mode of take.'').
In reaching a contrary conclusion, Opinion M-37041 assumed that
because section 703 of the MBTA is a strict-liability provision,
meaning that no mens rea or criminal intent is required for a violation
to have taken place, any act that takes or kills a bird must be covered
as long as the act results in the death of a bird. In making that
assumption, M-37041 improperly ignored the meaning and context of the
actual acts prohibited by the statute. Instead, the opinion presumed
that the lack of a mental state requirement for a misdemeanor violation
of the MBTA equated to reading the prohibited acts ``kill'' and
``take'' as broadly applying to actions not specifically directed at
migratory birds, so long as the result was their death or injury. But
the relevant acts prohibited by the MBTA are voluntary acts directed at
reducing an animal to human control, such as when a hunter shoots a
protected bird causing its death. The key remains that the actor was
engaged in an activity the object of which was to render a bird subject
to human control.
By contrast, liability fails to attach to actions that are not
directed toward rendering an animal subject to human control. Common
examples of such actions include: driving a car, allowing a pet cat to
roam outdoors, or erecting a windowed building. All of these actions
could foreseeably result in the deaths of protected birds, and all
would be violations of the MBTA under the now-withdrawn M-Opinion if
they did in fact result in deaths of protected birds, yet none of these
actions have as their object rendering any animal subject to human
control. Because, under the present interpretation, no ``take'' has
occurred within the meaning of the MBTA, the strict-liability
provisions of the Act would not be triggered.
The prior M-Opinion posited that amendments to the MBTA imposing
mental state requirements for certain specific offenses were only
necessary if no mental state is otherwise required. But the conclusion
that the taking and killing of migratory birds is a strict-liability
crime does not answer the separate question of what acts are
criminalized under the statute. The Fifth Circuit agreed in CITGO,
stating ``we disagree that because misdemeanor
[[Page 5918]]
MBTA violations are strict liability crimes, a `take' includes acts (or
omissions) that indirectly or accidentally kill migratory birds.'' The
court goes on to note that ``[a] person whose car accidentally collided
with the bird . . . has committed no act `taking' the bird for which he
could be held strictly liable. Nor do the owners of electrical lines
`take' migratory birds who run into them. These distinctions are
inherent in the nature of the word `taking' and reveal the strict
liability argument as a non-sequitur.'' 801 F.3d at 493. Similarly, in
Mahler v. U.S. Forest Serv., 927 F. Supp. 1559 (S.D. Ind. 1996), the
court described the interplay between activities that are specifically
directed at birds and the strict liability standard of the MBTA:
[A comment in the legislative history] in favor of strict
liability does not show any intention on the part of Congress to
extend the scope of the MBTA beyond hunting, trapping, poaching, and
trading in birds and bird parts to reach any and all human activity
that might cause the death of a migratory bird. Those who engage in
such activity and who accidentally kill a protected migratory bird
or who violate the limits on their permits may be charged with
misdemeanors without proof of intent to kill a protected bird or
intent to violate the terms of a permit. That does not mean,
however, that Congress intended for ``strict liability'' to apply to
all forms of human activity, such as cutting a tree, mowing a
hayfield, or flying a plane. The 1986 amendment and corresponding
legislative history reveal only an intention to close a loophole
that might prevent felony prosecutions for commercial trafficking in
migratory birds and their parts.
Thus, there appears to be no explicit basis in the language or
the development of the MBTA for concluding that it was intended to
be applied to any and all human activity that causes even
unintentional deaths of migratory birds.
927 F. Supp. at 1581 (referencing S. Rep. No. 99-445, at 16 (1986),
reprinted in 1986 U.S.C.C.A.N. 6113, 6128). Thus, limiting the range of
actions prohibited by the MBTA to those that are directed at migratory
birds will focus prosecutions on activities like hunting and trapping
and exclude more attenuated conduct, such as lawful commercial
activity, that unintentionally and indirectly results in the death of
migratory birds.
The History of the MBTA
The history of the MBTA and the debate surrounding its adoption
illustrate that the Act was part of Congress's efforts to regulate the
hunting of migratory birds in direct response to the extreme over-
hunting, largely for commercial purposes, that had occurred over the
years. See United States v. Moon Lake Electric Ass'n, 45 F. Supp. 2d
1070, 1080 (D. Colo. 1999) (``the MBTA's legislative history indicates
that Congress intended to regulate recreational and commercial
hunting''); Mahler, 927 F. Supp. at 1574 (``The MBTA was designed to
forestall hunting of migratory birds and the sale of their parts'').
Testimony concerning the MBTA given by the Solicitor's Office for the
Department of Agriculture underscores this focus:
We people down here hunt [migratory birds]. The Canadians
reasonably want some assurances from the United States that if they
let those birds rear their young up there and come down here, we
will preserve a sufficient supply to permit them to go back there.
Protection of Migratory Birds: Hearing on H.R. 20080 Before the House
Comm. on Foreign Affairs, 64th Cong. 22-23 (1917) (statement of R.W.
Williams, Solicitor's Office, Department of Agriculture). Likewise, the
Chief of the Department of Agriculture's Bureau of Biological Survey
noted that he ``ha[s] always had the idea that [passenger pigeons] were
destroyed by overhunting, being killed for food and for sport.''
Protection of Migratory Birds: Hearing on H.R. 20080 Before the House
Comm. on Foreign Affairs, 64th Cong. 11 (1917) (statement of E. W.
Nelson, Chief Bureau of Biological Survey, Department of Agriculture).
Statements from individual Congressmen evince a similar focus on
hunting. Senator Smith, ``who introduced and championed the Act . . .
in the Senate,'' Leaders in Recent Successful Fight for the Migratory
Bird Treaty Act, Bulletin--The American Game Protective Association,
July 1918, at 5, explained:
Nobody is trying to do anything here except to keep pothunters
from killing game out of season, ruining the eggs of nesting birds,
and ruining the country by it. Enough birds will keep every insect
off of every tree in America, and if you will quit shooting them
they will do it.
55 Cong. Rec. 4816 (statement of Sen. Smith) (1917). Likewise, during
hearings of the House Foreign Affairs Committee, Congressman Miller, a
``vigorous fighter, who distinguished himself in the debate'' over the
MBTA, Leaders in Recent Successful Fight for the Migratory Bird Treaty
Act, Bulletin--The American Game Protective Association, July 1918, at
5, put the MBTA squarely in the context of hunting:
I want to assure you . . . that I am heartily in sympathy with
this legislation. I want it to go through, because I am up there
every fall, and I know what the trouble is. The trouble is in
shooting the ducks in Louisiana, Arkansas, and Texas in the summer
time, and also killing them when they are nesting up in Canada.
Protection of Migratory Birds: Hearing on H.R. 20080 Before the House
Comm. on Foreign Affairs, 64th Cong. 7 (1917) (statement of Rep.
Miller).
In seeking to take a broader view of congressional purpose, the
Moon Lake court looked to other contemporary statements that cited the
destruction of habitat, along with improvements in firearms, as a cause
of the decline in migratory bird populations. The court even suggested
that these statements, which ``anticipated application of the MBTA to
children who act `through inadvertence' or `through accident,' ''
supported a broader reading of the legislative history. Moon Lake, 45
F. Supp. 2d at 1080-81. Upon closer examination, these statements are
instead consistent with a limited reading of the MBTA.
One such contemporary statement cited by the court is a letter from
Secretary of State Robert Lansing to the President attributing the
decrease in migratory bird populations to two general issues:
Habitat destruction, described generally as ``the
extension of agriculture, and particularly the draining on a large
scale of swamps and meadows;'' and
Hunting, described in terms of ``improved firearms and a
vast increase in the number of sportsmen.''
These statements were referenced by Representative Baker during the
House floor debate over the MBTA, implying that the MBTA was intended
to address both issues. Moon Lake, 45 F. Supp. 2d at 1080-81 (quoting
H. Rep. No. 65-243, at 2 (1918) (letter from Secretary of State Robert
Lansing to the President)). However, Congress addressed hunting and
habitat destruction in the context of the Migratory Bird Treaty through
two separate acts:
First, in 1918, Congress adopted the MBTA to address the
direct and intentional killing of migratory birds;
Second, in 1929, Congress adopted the Migratory Bird
Conservation Act to ``more effectively'' implement the Migratory Bird
Treaty by protecting certain migratory bird habitats.
The Migratory Bird Conservation Act provided the authority to purchase
or rent land for the conservation of migratory birds, including for the
establishment of inviolate ``sanctuaries'' wherein migratory bird
habitats would be protected from persons ``cut[ting], burn[ing], or
destroy[ing] any timber, grass, or other natural growth.'' Migratory
Bird Conservation Act, section 10, 45 Stat. 1222, 1224 (1929)
[[Page 5919]]
(codified as amended at 16 U.S.C. 715-715s). If the MBTA was originally
understood to protect migratory bird habitats from incidental
destruction, enactment of the Migratory Bird Conservation Act eleven
years later would have been largely superfluous. Instead, the MBTA and
the Migratory Bird Conservation Act are complementary: ``Together, the
Treaty Act in regulating hunting and possession and the Conservation
Act by establishing sanctuaries and preserving natural waterfowl
habitat help implement our national commitment to the protection of
migratory birds.'' United States v. North Dakota, 650 F.2d 911, 913-14
(8th Cir. 1981), aff'd on other grounds, 460 U.S. 300 (1983).
Some courts have attempted to interpret a number of floor
statements as supporting the notion that Congress intended the MBTA to
regulate more than just hunting and poaching, but those statements
reflect an intention to prohibit actions directed at birds--whether
accomplished through hunting or some other means intended to directly
kill birds. For example, some Members ``anticipated application of the
MBTA to children who act `through inadvertence' or `through accident.'
''
What are you going to do in a case like this: A barefoot boy, as
barefoot boys sometimes do, largely through inadvertence and without
meaning anything wrong, happens to throw a stone at and strikes and
injures a robin's nest and breaks one of the eggs, whereupon he is
hauled before a court for violation of a solemn treaty entered into
between the United States of America and the Provinces of Canada.
Moon Lake, 45 F. Supp. 2d at 1081 (quoting 56 Cong. Rec. 7455 (1918)
(statement of Rep. Mondell)). ``[I]nadvertence'' in this statement
refers to the boy's mens rea. As the rest of the sentence clarifies,
the hypothetical boy acted ``without meaning anything wrong,'' not that
he acted unintentionally or accidentally in damaging the robin's nest.
This is reinforced by the rest of the hypothetical, which posits that
the boy threw ``a stone at and strikes and injures a robin's nest.''
The underlying act is directed specifically at the robin's nest. In
other statements various members of Congress expressed concern about
``sportsmen,'' people ``killing'' birds, ``shooting'' of game birds or
``destruction'' of insectivorous birds, and whether the purpose of the
MBTA was to favor a steady supply of ``game animals for the upper
classes.'' Moon Lake, 45 F. Supp. 2d at 1080-81. One Member of Congress
even offered a statement that explains why the statute is not redundant
in its use of the various terms to explain what activities are
regulated: ``[T]hey cannot hunt ducks in Indiana in the fall, because
they cannot kill them. I have never been able to see why you cannot
hunt, whether you kill or not. There is no embargo on hunting, at least
down in South Carolina . . . .' '' Id. at 1081 (quoting 56 Cong. Rec.
7446 (1918) (statement of Rep. Stevenson)). That Congress was animated
regarding potential restrictions on hunting and its impact on
individual hunters is evident from even the statements relied upon as
support for the conclusion that the statute reaches incidental take.
Finally, in 1918, Federal regulation of the hunting of wild birds
was a highly controversial and legally fraught subject. For example, on
the floor of the Senate, Senator Reed proclaimed:
I am opposed not only now in reference to this bill [the MBTA],
but I am opposed as a general proposition to conferring power of
that kind upon an agent of the Government. . . .
. . . Section 3 proposes to turn these powers over to the
Secretary of Agriculture . . . to make it a crime for a man to shoot
game on his own farm or to make it perfectly legal to shoot it on
his own farm . . . .
When a Secretary of Agriculture does a thing of that kind I have
no hesitancy in saying that he is doing a thing that is utterly
indefensible, and that the Secretary of Agriculture who does it
ought to be driven from office . . . .
55 Cong. Rec. 4813 (1917) (statement of Sen. Reed).
Federal regulation of hunting was also legally tenuous at that
time. Whether the Federal Government had any authority to regulate the
killing or taking of any wild animal was an open question in 1918. Just
over 20 years earlier, the Supreme Court in Geer had ruled that the
States exercised the power of ownership over wild game in trust,
implicitly precluding Federal regulation. See Geer v. Connecticut, 161
U.S. 519 (1896). When Congress did attempt to assert a degree of
Federal jurisdiction over wild game with the 1913 Weeks-McLean Law, it
was met with mixed results in the courts, leaving the question pending
before the Supreme Court at the time of the MBTA's enactment. See,
e.g., United States v. Shaver, 214 F. 154, 160 (E.D. Ark. 1914); United
States v. McCullagh, 221 F. 288 (D. Kan. 1915). It was not until
Missouri v. Holland in 1920 that the Court, relying on authority
derived from the Migratory Bird Treaty (Canada Convention) under the
Treaty Clause of the U.S. Constitution, definitively acknowledged the
Federal Government's ability to regulate the taking of wild birds. 252
U.S. 416, 432-33 (1920).
Given the legal uncertainty and political controversy surrounding
Federal regulation of intentional hunting in 1918, it is highly
unlikely that Congress intended to confer authority upon the executive
branch to prohibit all manner of activity that had an incidental impact
on migratory birds.
The provisions of the 1916 Canada Convention provide support for
this conclusion by authorizing only certain circumscribed activities
specifically directed at migratory birds. The Convention authorizes
hunting only during prescribed open seasons, and take at any time for
other limited purposes such as scientific use, propagation, or to
resolve conflicts under extraordinary conditions when birds become
seriously injurious to agricultural or other interests. See Canada
Convention, Art. II-VII, 39 Stat. 1702.
Subsequent legislative history does not undermine a limited
interpretation of the MBTA, as enacted in 1918. The ``fixed-meaning
canon of statutory construction directs that ``[w]ords must be given
the meaning they had when the text was adopted.'' Scalia & Garner at
78. The meaning of written instruments ``does not alter. That which it
meant when adopted, it means now.'' South Carolina v. United States,
199 U.S. 437, 448 (1905).
The operative language in section 2 of the MBTA has changed little
since its adoption in 1918. The current iteration of the relevant
language--making it unlawful for persons ``at any time, by any means or
in any manner, to pursue, hunt, take, capture, kill, attempt to take,
capture, or kill, possess'' specific migratory birds--was adopted in
1935 as part of the Mexico Treaty Act and has remained unchanged since
then. Compare Mexico Treaty Act, 49 Stat. 1555, section 3 with 16
U.S.C. 703(a). As with the 1916 Canada Convention, the Mexico
Convention focused primarily on hunting and establishing protections
for birds in the context of take and possession for commercial use. See
Convention between the United States of America and Mexico for the
Protection of Migratory Birds and Game Mammals, 50 Stat. 1311 (Feb. 7,
1936) (Mexico Convention). Subsequent Protocols amending both these
Conventions also did not explicitly address incidental take or
otherwise broaden their scope to prohibit anything other than
purposeful take of migratory birds. See Protocol between the Government
of the United States and the Government of Canada Amending the 1916
Convention between the United Kingdom and the United States of America
for the protection of
[[Page 5920]]
Migratory Birds, Sen. Treaty Doc. 104-28 (Dec. 14, 1995) (outlining
conservation principles to ensure long-term conservation of migratory
birds, amending closed seasons, and authorizing indigenous groups to
harvest migratory birds and eggs throughout the year for subsistence
purposes); Protocol between the Government of the United States of
America and the Government of the United Mexican States Amending the
Convention for Protection of Migratory Birds and Game Mammals, Sen.
Treaty Doc. 105-26 (May 5, 1997) (authorizing indigenous groups to
harvest migratory birds and eggs throughout the year for subsistence
purposes).
It was not until more than 50 years after the initial adoption of
the MBTA and 25 years after the Mexico Treaty Act that Federal
prosecutors began applying the MBTA to incidental actions. See Lilley &
Firestone at 1181 (``In the early 1970s, United States v. Union Texas
Petroleum [No. 73-CR-127 (D. Colo. Jul. 11, 1973)] marked the first
case dealing with the issue of incidental take.''). This newfound
Federal authority was not accompanied by any corresponding legislative
change. The only contemporaneous changes to section 2 of the MBTA were
technical updates recognizing the adoption of a treaty with Japan. See
Act of June 1, 1974, Public Law 93-300, 88 Stat. 190. Implementing
legislation for the treaty with the Soviet Union also did not amend
section 2. See Fish and Wildlife Improvement Act of 1978, Public Law
95-616, sec. 3(h), 92 Stat. 3110. Similar to the earlier Conventions,
the provisions of the Japan and Russia Conventions authorized
purposeful take for specific activities such as hunting, scientific,
educational and propagation purposes, and protection against injury to
persons and property. However, they also outlined mechanisms to protect
habitat and prevent damage from pollution and other environmental
degradation (domestically implemented by the Migratory Bird
Conservation Act and other applicable Federal laws). See Convention
between the Government of the United States and the Government of Japan
for the Protection of Migratory birds and Birds in Danger of
Extinction, and their Environment, 25 U.S.T. 3329, T.I.A.S. No. 7990
(Mar. 4, 1972) (Japan Convention); Convention between the United States
of America and the Union of Soviet Socialist Republics Concerning the
Conservation of Migratory Birds and their Environment, T.I.A.S. No.
9073 (Nov. 19, 1976) (Russia Convention).
No changes were made to the section of the MBTA at issue here
following the later conventions except that the Act was modified to
include references to these later agreements. Certainly other Federal
laws may require consideration of potential impacts to birds and their
habitat in a way that furthers the goals of the Conventions' broad
statements. See, e.g., Mahler, 927 F. Supp. at 1581 (``Many other
statutes enacted in the intervening years also counsel against reading
the MBTA to prohibit any and all migratory bird deaths resulting from
logging activities in national forests. As is apparent from the record
in this case, the Forest Service must comply with a myriad of statutory
and regulatory requirements to authorize even the very modest type of
salvage logging operation of a few acres of dead and dying trees at
issue in this case. Those laws require the Forest Service to manage
national forests so as to balance many competing goals, including
timber production, biodiversity, protection of endangered and
threatened species, human recreation, aesthetic concerns, and many
others.''). Given the overwhelming evidence that the primary purpose of
section 2, as amended by the Mexico Treaty Act, was to control over-
hunting, the references to the later agreements do not bear the weight
of the conclusion reached by the prior Opinion (M-37041).
Thus, the only legislative enactment concerning incidental activity
under the MBTA is the 2003 appropriations bill that explicitly exempted
military-readiness activities from liability under the MBTA for
incidental takings. See Bob Stump National Defense Authorization Act
for Fiscal Year 2003, Public Law 107-314, Div. A, Title III, section
315, 116 Stat. 2509 (2002), reprinted in 16 U.S.C.A. 703, Historical
and Statutory Notes. There is nothing in this legislation that
authorizes the government to pursue incidental takings charges in other
contexts. Rather, some have ``argue[d] that Congress expanded the
definition of `take' by negative implication'' since ``[t]he exemption
did not extend to the `operation of industrial facilities,' even though
the government had previously prosecuted activities that indirectly
affect birds.'' CITGO, 801 F.3d at 490-91.
This argument is contrary to the Court's admonition that ``Congress
. . . does not alter the fundamental details of a regulatory scheme in
vague terms or ancillary provisions--it does not, one might say, hide
elephants in mouseholes.'' Whitman v. Am. Trucking Ass'ns, 531 U.S.
457, 468 (2001). As the Fifth Circuit explained, ``[a] single carve-out
from the law cannot mean that the entire coverage of the MBTA was
implicitly and hugely expanded.'' CITGO, 801 F.3d at 491. Rather, it
appears Congress acted in a limited fashion to preempt a specific and
immediate impediment to military-readiness activities. ``Whether
Congress deliberately avoided more broadly changing the MBTA or simply
chose to address a discrete problem, the most that can be said is that
Congress did no more than the plain text of the amendment means.'' Id.
It did not hide the elephant of incidental takings in the mouse hole of
a narrow appropriations provision.
Constitutional Issues
The Supreme Court has recognized that ``[a] fundamental principle
in our legal system is that laws which regulate persons or entities
must give fair notice of conduct that is forbidden or required.'' FCC
v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). ``No one
may be required at peril of life, liberty or property to speculate as
to the meaning of penal statutes.'' Lanzetta v. New Jersey, 306 U.S.
451, 453 (1939). Accordingly, a ``statute which either forbids or
requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law.'' Fox
Television, 567 U.S. at 253 (quoting Connally v. General Constr. Co.,
269 U.S. 385, 391 (1926)). Thus, ``[a] conviction or punishment fails
to comply with due process if the statute or regulation under which it
is obtained `fails to provide a person of ordinary intelligence fair
notice of what is prohibited, or is so standardless that it authorizes
or encourages seriously discriminatory enforcement.''' Id. (quoting
United States v. Williams, 553 U.S. 285, 304 (2008)).
Assuming, arguendo, that the MBTA is ambiguous, the interpretation
that limits its application to conduct that is specifically directed at
birds is necessary to avoid potential constitutional concerns. As the
Court has advised, ``where an otherwise acceptable construction of a
statute would raise serious constitutional problems, the Court will
construe the statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress.'' Edward J. DeBartolo Corp.
v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
(1988). Here, an attempt to impose liability for acts that are not
directed at migratory birds raises just such constitutional concerns.
The ``scope of liability'' under an interpretation of the MBTA that
extends criminal liability to all persons who kill or take migratory
birds incidental to another activity is ``hard to overstate,''
[[Page 5921]]
CITGO, 801 F.3d at 493, and ``offers unlimited potential for criminal
prosecutions.'' Brigham Oil, 840 F. Supp. 2d at 1213. ``The list of
birds now protected as `migratory birds' under the MBTA is a long one,
including many of the most numerous and least endangered species one
can imagine.'' Mahler, 927 F. Supp. at 1576. Currently, over 1,000
species of birds--including ``all species native to the United States
or its territories''--are protected by the MBTA. 78 FR 65,844, 65,845
(Nov. 1, 2013); see also 50 CFR 10.13 (list of protected migratory
birds); Migratory Bird Permits; Programmatic Environmental Impact
Statement, 80 FR 30032, 30033 (May 26, 2015) (``Of the 1,027 currently
protected species, approximately 8% are either listed (in whole or in
part) as threatened or endangered under the Endangered Species Act
(ESA) (16 U.S.C. 1531 et seq.) and 25% are designated (in whole or in
part) as Birds of Conservation Concern (BCC).''). Service analysis
indicates that the top threats to birds are:
Cats, which kill an estimated 2.4 billion birds per year;
Collisions with building glass, which kill an estimated
599 million birds per year;
Collisions with vehicles, which kill an estimated 214.5
million birds per year;
Chemical poisoning (e.g., pesticides and other toxins),
which kill an estimated 72 million birds per year;
Collisions with electrical lines, which kill an estimated
25.5 million birds per year;
Collisions with communications towers, which kill an
estimated 6.6 million birds per year;
Electrocutions, which kill an estimated 5.6 million birds
per year;
Oil pits, which kill an estimated 750 thousand birds per
year; and
Collisions with wind turbines, which kill an estimated 234
thousand birds per year.
U.S. Fish and Wildlife Service, Threats to Birds: Migratory Birds
Mortality--Questions and Answers, available at https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php (last updated September 14,
2018).
Interpreting the MBTA to apply strict criminal liability to any
instance where a migratory bird is killed as a result of these threats
would certainly be a clear and understandable rule. See United States
v. Apollo Energies, Inc., 611 F.3d 679, 689 (10th Cir. 2010)
(concluding that under an incidental take interpretation, ``[t]he
actions criminalized by the MBTA may be legion, but they are not
vague''). But it would also turn the majority of Americans into
potential criminals. See Mahler, 927 F. Supp. 1577-78 (listing a litany
of scenarios where normal everyday actions could potentially and
incidentally lead to the death of a single bird or breaking of an egg
in a nest)). Such an interpretation could lead to absurd results, which
are to be avoided. See Griffin v. Oceanic Contractors, 458 U.S. 564,
575 (1982) (``interpretations of a statute which would produce absurd
results are to be avoided if alternative interpretations consistent
with the legislative purpose are available''); see also K Mart Corp. v.
Cartier, 486 U.S. 281, 324 n.2 (1988) (Scalia, J. concurring in part
and dissenting in part) (``it is a venerable principle that a law will
not be interpreted to produce absurd results.'').
These potentially absurd results are not ameliorated by limiting
the definition of ``incidental take'' to ``direct and foreseeable''
harm as some courts have suggested. See U.S. Fish and Wildlife Service
Manual, part 720, ch. 3, Incidental Take Prohibited Under the Migratory
Bird Treaty Act (Jan. 11, 2017). The court in Moon Lake identified an
``important and inherent limiting feature of the MBTA's misdemeanor
provision: To obtain a guilty verdict . . ., the government must prove
proximate causation.'' Moon Lake, 45 F. Supp. 2d at 1085. Quoting
Black's Law Dictionary, the court defines proximate cause as ``that
which, in a natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without which the accident
could not have happened, if the injury be one which might be reasonably
anticipated or foreseen as a natural consequence of the wrongful act.''
Id. (quoting Black's Law Dictionary 1225 (6th ed. 1990)) (emphasis in
original). The Tenth Circuit in Apollo Energies took a similar
approach, holding ``the MBTA requires a defendant to proximately cause
the statute's violation for the statute to pass constitutional muster''
and quoting from Black's Law Dictionary to define ``proximate cause.''
Apollo Energies, 611 F.3d at 690.
Contrary to the suggestion of the courts in Moon Lake and Apollo
Energies that principles of proximate causation can be read into the
statute to define and limit the scope of incidental take, the death of
birds as a result of activities such as driving, flying, or maintaining
buildings with large windows is a ``direct,'' ``reasonably
anticipated,'' and ``probable'' consequence of those actions. As
discussed above, collisions with buildings and cars are the second and
third most common human-caused threat to birds, killing an estimated
599 million and 214.5 million birds per year, respectively. It is
eminently foreseeable and probable that cars and windows will kill
birds. Thus, limiting incidental take to direct and foreseeable results
does little to prevent absurd outcomes.
To avoid these absurd results, the government has historically
relied on prosecutorial discretion. See Ogden at 29 (``Historically,
the limiting mechanism on the prosecution of incidental taking under
the MBTA by non-federal persons has been the exercise of prosecutorial
discretion by the FWS.''); see generally FMC, 572 F.2d at 905
(situations ``such as deaths caused by automobiles, airplanes, plate
glass modern office buildings or picture windows in residential
dwellings . . . properly can be left to the sound discretion of
prosecutors and the courts''). Yet, the Supreme Court has declared
``[i]t will not do to say that a prosecutor's sense of fairness and the
Constitution would prevent a successful . . . prosecution for some of
the activities seemingly embraced within the sweeping statutory
definitions.'' Baggett v. Bullitt, 377 U.S. 360, 373 (1964); see also
Mahler, 927 F. Supp. 1582 (``Such trust in prosecutorial discretion is
not really an answer to the issue of statutory construction'' in
interpreting the MBTA.). For broad statutes that may be applied to
seemingly minor or absurd situations, ``[i]t is no answer to say that
the statute would not be applied in such a case.'' Keyishian v. Bd. of
Regents, 385 U.S. 589, 599 (1967).
Recognizing the challenge posed by relying upon prosecutorial
discretion, the FMC court sought to avoid absurd results by limiting
its holding to ``extrahazardous activities.'' FMC, 572 F.2d at 907. The
term ``extrahazardous activities'' is not found anywhere in the
statute, and is not defined by either the court or the Service. See
Mahler, 927 F. Supp. at 1583 n.9 (noting that the FMC court's
``limiting principle . . . of strict liability for hazardous commercial
activity . . . ha[s] no apparent basis in the statute itself or in the
prior history of the MBTA's application since its enactment''); cf.
United States v. Rollins, 706 F. Supp. 742, 744-45 (D. Idaho 1989)
(``The statute itself does not state that poisoning of migratory birds
by pesticide constitutes a criminal violation. Such specificity would
not have been difficult to draft into the statute''). Thus, it is
unclear what activities are ``extrahazardous.'' In FMC, the concept was
applied to the
[[Page 5922]]
manufacture of ``toxic chemicals,'' i.e., pesticides. But the court was
silent as to how far this rule extends, even in the relatively narrow
context of pesticides.
This type of uncertainty could be problematic under the Supreme
Court's due process jurisprudence. See Rollins, 706 F. Supp. at 745
(dismissing charges against a farmer who applied pesticides to his
fields that killed a flock of geese, reasoning ``[f]armers have a right
to know what conduct of theirs is criminal, especially where that
conduct consists of common farming practices carried on for many years
in the community. While statutes do not have to be drafted with
`mathematical certainty,' they must be drafted with a `reasonable
degree of certainty.' The MBTA fails this test. . . . Under the facts
of this case, the MBTA does not give `fair notice as to what
constitutes illegal conduct' so that [the farmer] could `conform his
conduct to the requirements of the law.' '' (internal citations
omitted)).
While the MBTA does contemplate the issuance of permits authorizing
the taking of wildlife, it requires such permits to be issued by
``regulation.'' See 16 U.S.C. 703(a) (``Unless and except as permitted
by regulations made as hereinafter provided . . ..'' (emphasis added)).
No regulations have been issued to create a permit scheme to authorize
incidental take, so most potential violators have no formal mechanism
to ensure that their actions comply with the law. There are voluntary
Service guidelines issued for different industries that recommend best
practices to avoid incidental take of protected birds; however, these
guidelines provide only limited protection to potential violators.
Moreover, most of the Service's MBTA guidelines have not gone through
the formal Administrative Procedure Act processes to be considered
``regulations'' and thus are not issued under the permitting authority
of section 3 of the MBTA.
In the absence of a permit issued pursuant to Departmental
regulation, it is not clear that the Service has any authority under
the MBTA to require minimizing or mitigating actions that balance the
environmental harm from the taking of migratory birds with other
societal goals, such as the production of wind or solar energy.
Accordingly, the guidelines do not provide enforceable legal
protections for people and businesses who abide by their terms. To wit,
the guidelines themselves state that ``it is not possible to absolve
individuals or companies'' from liability under the MBTA. Rather, the
guidelines are explicit that the Service may only take full compliance
into consideration in exercising its discretion whether or not to refer
an individual or company to the Department of Justice for prosecution.
See, e.g., U.S. Fish and Wildlife Service, Land-Based Wind Energy
Guidelines 6 (Mar. 23, 2012).
Under this approach, it is literally impossible for individuals and
companies to know exactly what is required of them under the law when
otherwise lawful activities necessarily result in accidental bird
deaths. Even if they comply with everything requested of them by the
Service, they may still be prosecuted, and still found guilty of
criminal conduct. See generally United States v. FMC Corp., 572 F.2d
902, 904 (2d Cir. 1978) (the court instructed the jury not to consider
the company's remediation efforts as a defense: ``Therefore, under the
law, good will and good intention and measures taken to prevent the
killing of the birds are not a defense.''). In sum, due process
``requires legislatures to set reasonably clear guidelines for law
enforcement officials and triers of fact in order to prevent `arbitrary
and discriminatory enforcement.' '' Smith v. Goguen, 415 U.S. 566, 572-
73 (1974).
Reading the MBTA to capture incidental takings could potentially
transform average Americans into criminals. The text, history, and
purpose of the MBTA demonstrate instead that it is a law limited in
relevant part to actions, such as hunting and poaching, that reduce
migratory birds and their nests and eggs to human control by killing or
capturing. Even assuming that the text could be subject to multiple
interpretations, courts and agencies are to avoid interpreting
ambiguous laws in ways that raise constitutional doubts if alternative
interpretations are available. Thus, interpreting the MBTA to
criminalize incidental takings raises potential due process concerns.
Based upon the text, history, and purpose of the MBTA, and consistent
with decisions in the Courts of Appeals for the Fifth, Eighth, and
Ninth circuits, there is an alternative interpretation that avoids
these concerns. Therefore, as a matter of law, the scope of the MBTA
does not include incidental take.
Policy Analysis of Incidental Take Under the MBTA
As detailed above, the Service agrees that the conclusion in
Opinion M-37050 that the MBTA's prohibitions on pursuing, hunting,
taking, capturing, killing, or attempting to do the same apply only to
actions directed at migratory birds, their nests, or their eggs is
compelled as a matter of law. In addition, even if such a conclusion is
not legally compelled, the Service proposes to adopt it as a matter of
policy.
The Service's prior approach to incidental take was enacted without
public input, and has resulted in regulatory uncertainty and
inconsistency. Prosecutions for incidental take occurred in the 1970s
without any accompanying change in either the underlying statute or
Service regulations. Accordingly, an interpretation with implications
for large portions of the American economy was implicitly adopted
without public debate. Subsequently, the Service has sought to limit
the potential reach of MBTA liability by pursuing enforcement
proceedings only against persons who fail to take what the Service
considers ``reasonable'' precautions against foreseeable risks.
Based upon the Service's analysis of manmade threats to migratory
birds and the Service's own enforcement history, common activities such
as owning and operating a power line, wind farm, or drilling operation
pose an inherent risk of incidental take. An expansive reading of the
MBTA that includes an incidental take prohibition would subject those
who engage in these common, and necessary, activities to criminal
liability.
As described in M-37050, this approach effectively leaves otherwise
lawful, productive, and often necessary businesses to take their
chances and hope they avoid prosecution, not because their conduct is
or even can be in strict compliance with the law, but because the
government has chosen to forgo prosecution. Productive and otherwise
lawful economic activity should not be functionally dependent upon the
ad hoc exercise of enforcement discretion.
Further, as a practical matter, inconsistency and uncertainty are
built into the MBTA enforcement regime by virtue of a split between
Federal Courts of Appeals. Courts have adopted different views on
whether section 2 of the MBTA prohibits incidental take, and, if so, to
what extent. Courts of Appeals in the Second and Tenth Circuits, as
well as district courts in at least the Ninth and District of Columbia
Circuits, have held that the MBTA criminalizes some instances of
incidental take, generally with some form of limiting construction. See
United States v. FMC Corporation, 572 F.2d 902 (2d Cir. 1978); United
States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010); United
States v. Corbin Farm Serv., 444 F. Supp. 510 (E.D. Cal. 1978); Ctr.
for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002),
vacated on other grounds sub nom. Ctr.
[[Page 5923]]
for Biological Diversity v. England, 2003 App. LEXIS 1110 (D.C. Cir.
2003).
By contrast, Courts of Appeals in the Fifth, Eighth, and Ninth
Circuits, as well as district courts in the Third and Seventh Circuits,
have indicated that it does not.\1\ See United States v. CITGO
Petroleum Corp., 801 F.3d 477 (5th Cir. 2015); Newton County Wildlife
Ass'n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. 1997); Seattle
Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991); Mahler v. U.S.
Forest Serv., 927 F. Supp. 1559 (S.D. Ind. 1996); Curry v. U.S. Forest
Serv., 988 F. Supp. 541, 549 (W.D. Pa. 1997).
---------------------------------------------------------------------------
\1\ The Court of Appeals for the Ninth Circuit distinguished,
without explicitly overturning, an earlier district-court decision
concerning incidental take.
---------------------------------------------------------------------------
As a result of these cases, the Federal Government is clearly
prohibited from enforcing an incidental take prohibition in the Fifth
Circuit. In the Eighth Circuit, the Federal Government has previously
sought to distinguish court of appeals rulings limiting the scope of
the MBTA to the habitat-destruction context. See generally Apollo
Energies, 611 F.3d at 686 (distinguishing the Eighth Circuit decision
in Newton County on the grounds that it involved logging that modified
a bird's habitat in some way). However, that argument was rejected by a
subsequent district court. See United States v. Brigham Oil & Gas,
L.P., 840 F. Supp. 2d 1202 (D.N.D. 2012). Likewise, the Federal
Government has sought to distinguish holdings in the habitat-
destruction context in the Ninth Circuit. See United States v. Moon
Lake Electrical Ass'n, 45 F. Supp. 2d 1070, 1075-76 (D. Colo. 1999)
(suggesting that the Ninth Circuit's ruling in Seattle Audubon may be
limited to habitat modification or destruction). In the Second and
Tenth Circuits, the Federal Government can apply the MBTA to incidental
take, albeit with differing judicial limitations.
These cases demonstrate the potential for a convoluted patchwork of
legal standards, all purporting to apply the same underlying law. The
MBTA is a national law. Many of the companies and projects that face
potential liability under the MBTA operate across boundary lines for
judicial circuits. Yet what is legal in the Fifth and Eighth Circuits
may become illegal as soon as an operator crosses State lines into the
bordering Tenth Circuit, or become a matter of uncertainty in the Ninth
Circuit. The Service concludes that it is in its own interest, as well
as that of the public, to have and apply a national standard that sets
a clear, articulable rule for when an operator crosses the line into
criminality. The most effective way to reduce uncertainty and have a
truly national standard is for the Service to codify and apply a
uniform interpretation of the MBTA that its prohibitions do not apply
to incidental take, based upon the Fifth Circuit's ruling in CITGO
Petroleum Corporation.
Therefore, as a matter of both law and policy, the Service proposes
to adopt a regulation limiting the scope of the MBTA to actions that
are directed at migratory birds, their nests, or their eggs, and to
clarify that injury to or mortality of migratory birds that results
from, but is not the purpose of, an action (i.e., incidental taking or
killing) is not prohibited by the Migratory Bird Treaty Act.
Public Comments
You may submit your comments and supporting materials by one of the
methods listed in ADDRESSES. We will not consider comments sent by
email or fax, or written comments sent to an address other than the one
listed in ADDRESSES.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, are available
for public inspection at http://www.regulations.gov. We will post your
entire comment--including your personal identifying information--on
http://www.regulations.gov. You may request at the top of your document
that we withhold personal information such as your street address,
phone number, or email address from public review; however, we cannot
guarantee that we will be able to do so.
We invite the public to provide information on the following
topics: (1) The avoidance, minimization, and mitigation measures
entities employed to address incidental take of migratory birds, and
the degree to which these measures reduce bird mortality; (2) the
extent that avoidance, minimization, and mitigation measures continue
to be used, and will continue to be used if this proposed rule is
finalized; (3) the direct costs associated with implementing these
measures; (4) indirect costs entities have incurred related to the
legal risk of prosecution for incidental take of migratory birds (e.g.,
legal fees, increased interest rates on financing, insurance,
opportunity costs); (5) the sources and scale of incidental bird
mortality; and (6) any quantitative information regarding ecosystem
services provided by migratory birds. This information will be used to
better inform the cost and benefit analysis of this rulemaking.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
Codifying the Solicitor's Opinion, M-37050, into Federal
regulations would provide the public, businesses, government agencies,
and other entities legal clarity and certainty regarding what is and is
not prohibited under the MBTA. It is anticipated that some entities
that currently employ mitigation measures to reduce or eliminate
incidental migratory bird take would reduce or curtail these activities
given the legal certainty provided by this proposed regulation. Others
may continue to employ these measures voluntarily for various reasons,
including continued compliance with other Federal, State, and local
laws and regulations.
The Service does not have information available to quantify these
potential cost savings. Given our lack of specific data to estimate the
cost savings from reduced implementation of mitigation measures and
increased legal certainty, we ask for such data to inform analysis of
the proposed rule's potential effects.
Regulatory Flexibility Act and Small Business Regulatory Enforcement
Fairness Act
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to
publish a notice of
[[Page 5924]]
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small businesses, small
organizations, and small government jurisdictions. However, in lieu of
an initial or final regulatory flexibility analysis (IRFA or FRFA) the
head of an agency may certify on a factual basis that the rule would
not have a significant economic impact on a substantial number of small
entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule would not have a significant economic impact on a
substantial number of small entities. Thus, for an initial/final
regulatory flexibility analysis to be required, impacts must exceed a
threshold for ``significant impact'' and a threshold for a
``substantial number of small entities.'' See 5 U.S.C. 605(b). This
analysis first estimates the number of businesses impacted and then
estimates the economic impact of the rule.
Table 1 lists the industry sectors likely impacted by the proposed
rule. These are the industries that typically incidentally take
substantial numbers of birds and that the Service has worked with to
reduce those effects. In some cases, these industries have been subject
to enforcement actions and prosecutions under the MBTA prior to the
issuance of the M-Opinion. The vast majority of entities in these
sectors are small entities, based on the U.S. Small Business
Administration (SBA) small business size standards.
Table 1--Distribution of Businesses Within Affected Industries
----------------------------------------------------------------------------------------------------------------
Small business Number of
NAICS industry description NAICS code Number of size standard small
businesses (employees) businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing................................. 114111 1,210 \(a)\ 20 1,185
Crude Petroleum and Natural Gas Extraction...... 211111 6,878 1,250s 6,868
Drilling Oil and Gas Wells...................... 213111 2,097 1,000s 2,092
Solar Electric Power Generation................. 221114 153 250s 153
Wind Electric Power Generation.................. 221115 264 250s 263
Electric Bulk Power Transmission................ 221121 261 500s 214
Electric Power Distribution..................... 221122 7,557 1,000s 7,520
Wireless Telecommunications Carriers (except 517312 15,845 1,500s 15,831
Satellite).....................................
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Source: U.S. Census Bureau, 2012 County Business Patterns.
\a\Note: The Small Business Administration size standard for finfish fishing is $22 million. Neither Economic
Census, Agriculture Census, or NMFS collect business data by revenue size for the finfish industry. Therefore,
we employ other data to approximate the number of small businesses. Source: U.S. Census Bureau, 2017 Economic
Annual Survey.
Since the Service does not have a permitting system authorizing
incidental take of migratory birds, the Service does not have specific
information regarding how many businesses in each sector implement
measures to reduce incidental take of birds. Not all businesses in each
sector incidentally take birds. In addition, a variety of factors would
influence whether, under the previous interpretation of the MBTA,
businesses would implement such measures. It is also unknown how many
businesses continued or reduced practices to reduce the take of birds
since publication of the Solicitor's M-Opinion.
This proposed rule is deregulatory in nature and is thus likely to
have a positive economic impact on all regulated entities, and many of
these entities likely qualify as small businesses under the Small
Business Administration's threshold standards (see Table 1). By
codifying the M-Opinion, this proposal would remove legal uncertainty
for any individual, government entity, or business entity that
undertakes any activity that may kill or take migratory birds
incidental to otherwise lawful activity. Such small entities would
benefit from this proposed rule because it would remove uncertainty
about the potential impacts of proposed projects. Therefore, these
entities will have better information for planning projects and
achieving goals.
However, the economic impact of the proposed rule on small entities
is likely not significant. The costs of actions businesses typically
implement to reduce effects on birds are small compared to the economic
output of business, including small businesses, in these sectors. In
addition, many businesses will continue to take actions to reduce
effects on birds because these actions are best management practices
for their industry or are required by other Federal or State
regulations, there is a public desire to continue them, or the
businesses simply desire to reduce their effects on migratory birds.
Table 2 summarizes likely economic effects of the proposed rule on the
business sectors identified in Table 1.
Table 2--Summary of Economic Effects on Small Businesses
----------------------------------------------------------------------------------------------------------------
Bird mitigation
NAICS industry description NAICS code measures with no Economic effects on Rationale
action small businesses
----------------------------------------------------------------------------------------------------------------
Finfish Fishing............... 11411 Changes in design Likely minimal effects Longline fishing is
of longline regulated by the
fishing hooks, National Marine
change in offal Fisheries Service
management under the Magnuson-
practices, and Stevens Fishery
flagging/ Conservation and
streamers on Management Act and
fishing lines. other laws and
regulations that
limit bi-catch;
thus, continuation
of these mitigation
measures is likely.
[[Page 5925]]
Crude Petroleum and Natural 211111 Using closed Likely minimal effects Several States have
Gas Extraction. waste water regulations
systems or governing the
netting of oil treatment of oil
pits and ponds. pits, including
measures beneficial
to birds. In
addition, much of
the industry is
increasingly using
closed systems,
which do not pose a
risk to birds. For
these reasons, the
proposed rule is
unlikely to affect a
significant number
of small entities.
Drilling Oil and Gas Wells.... 213111 Using closed Likely minimal effects Several States have
waste water regulations
systems or governing the
netting of oil treatment of oil
pits and ponds. pits, including
measures beneficial
to birds. In
addition, much of
the industry is
increasingly using
closed systems,
which do not pose a
risk to birds. For
these reasons, the
proposed rule is
unlikely to affect a
significant number
of small entities.
Solar Electric Power 221114 Monitoring bird Likely minimal effects Bird monitoring in
Generation. use and some States would
mortality at continue to be
facilities, required under State
limited use of policies. Where not
deterrent required, monitoring
systems such as costs are likely not
streamers and significant compared
reflectors. to overall project
costs.
Wind Electric Power Generation 221115 Following Wind Likely minimal effects Following the Wind
Energy Energy Guidelines
Guidelines, has become industry
which involve best practice and
conducting risk would likely
assessments for continue. In
siting addition, the
facilities. industry uses these
guidelines to aid in
reducing effects on
other regulated
species like eagles
and threatened and
endangered bats.
Electric Bulk Power 221121 Following Avian Likely minimal effects Industry would likely
Transmission. Power Line continue to use
Interaction APLIC guidelines to
Committee reduce outages
(APLIC) caused by birds and
guidelines. to reduce the take
of eagles, regulated
under the Bald and
Golden Eagle
Protection Act.
Electric Power Distribution... 221122 Following Avian Likely minimal effects Industry would likely
Power Line continue to use
Interaction APLIC guidelines to
Committee reduce outages
(APLIC) caused by birds and
guidelines. to reduce the take
of eagles, regulated
under the Bald and
Golden Eagle
Protection Act.
Wireless Telecommunications 517312 Installation of Likely minimal effects Industry will likely
Carriers (except Satellite). flashing continue to install
obstruction flashing obstruction
lighting. lighting to save
energy costs and to
comply with recent
Federal Aviation
Administration
Lighting Circular
and Federal
Communication
Commission
regulations.
----------------------------------------------------------------------------------------------------------------
To improve our analysis of this proposed rule's effects on small
entities, we encourage the submission of relevant information during
the public comment period as described above under Regulatory Planning
and Review, such as additional industry sectors affected, the number of
small entities affected, and the scale and nature of economic effects.
As explained above and in the rationale set forth in Regulatory
Planning and Review, the economic effects on all regulated entities
will be positive and that this proposed rule is not a major rule under
SBREFA (5 U.S.C. 804(2)). Moreover, we certify that the proposed rule,
if promulgated, would not have a significant economic impact on a
substantial number of small entities.
Executive Order 13771--Reducing Regulation and Controlling Regulatory
Costs
We expect that this proposed rule will be an Executive Order (E.O.)
13771 (82 FR 9339, February 3, 2017) deregulatory action.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we have determined the following:
a. This proposed rule would not ``significantly or uniquely''
affect small government activities. A small government agency plan is
not required.
b. This proposed rule would not produce a Federal mandate on local
or State government or private entities. Therefore, this action is not
a ``significant regulatory action'' under the Unfunded Mandates Reform
Act.
Takings
In accordance with E.O. 12630, this proposed rule does not contain
a provision for taking of private property, and would not have
significant takings implications. A takings implication assessment is
not required.
Federalism
This proposed rule would not interfere with the States' abilities
to manage themselves or their funds. This rule would not have
sufficient federalism effects to warrant preparation of a federalism
summary impact statement under E.O. 13132.
Civil Justice Reform
In accordance with E.O. 12988, we have reviewed this proposed rule
and determined that it will not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order.
[[Page 5926]]
Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act
We are evaluating this proposed regulation in accordance with the
criteria of the National Environmental Policy Act (NEPA), the
Department of the Interior regulations on Implementation of the
National Environmental Policy Act (43 CFR 46.10 through 46.450), and
the Department of the Interior Manual (516 DM 8). We will complete our
analysis, in compliance with NEPA, before finalizing this regulation.
Compliance with Endangered Species Act Requirements
Section 7 of the Endangered Species Act of 1973, as amended (ESA;
16 U.S.C. 1531-44), requires that ``The Secretary [of the Interior]
shall review other programs administered by him and utilize such
programs in furtherance of the purposes of this Act.'' 16 U.S.C.
1536(a)(1)It further states that ``[e]ach Federal agency shall, in
consultation with and with the assistance of the Secretary, insure that
any action authorized, funded, or carried out by such agency . . . is
not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of [critical] habitat.'' 16 U.S.C. 1536(a)(2) Before the
Service issues a final rule regarding take of migratory birds, we will
comply with provisions of the ESA as necessary to ensure that the
proposed amendments are not likely to jeopardize the continued
existence of any species designated as endangered or threatened or
destroy or adversely modify its critical habitat.
Government-to-Government Relationship with Tribes
In accordance with Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments,'' and the Department of
the Interior's manual at 512 DM 2, we are considering the possible
effects of this proposed rule on federally recognized Indian Tribes.
The Department of the Interior strives to strengthen its government-to-
government relationship with Indian Tribes through a commitment to
consultation with Indian Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this proposed rule
under the criteria in Executive Order 13175 and under the Department's
tribal consultation policy and have determined that this rule may have
a substantial direct effect on federally recognized Indian tribes.
Accordingly, we will initiate government-to-government consultation
with federally recognized Indian tribes.
Clarity of this Proposed Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Energy Supply, Distribution, or Use (E.O. 13211)
E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This proposed rule is not a
significant regulatory action under E.O. 13211 and would not
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action. No Statement of Energy
Effects is required.
List of Subjects in 50 CFR Part 10
Exports, Fish, Imports, Law enforcement, Plants, Transportation,
Wildlife.
Proposed Regulation Promulgation
For the reasons described in the preamble, we propose to amend
subchapter B of chapter 1, title 50 of the Code of Federal Regulations,
as set forth below:
PART 10--GENERAL PROVISIONS
0
1. The authority citation for part 10 continues to read as follows:
Authority: 16 U.S.C. 668a-d, 703-712, 742a-j-l, 1361-1384, 1401-
1407, 1531-1543, 3371-3378; 18 U.S.C. 42; 19 U.S.C. 1202.
0
2. Add Sec. 10.14 to subpart B to read as follows:
Sec. 10.14 Scope of the Migratory Bird Treaty Act.
The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703)
that make it unlawful at any time, by any means or in any manner, to
pursue, hunt, take, capture, or kill migratory birds, or attempt to
engage in any of those actions, apply only to actions directed at
migratory birds, their nests, or their eggs. Injury to or mortality of
migratory birds that results from, but is not the purpose of, an action
(i.e., incidental taking or killing) is not prohibited by the Migratory
Bird Treaty Act.
Dated: January 22, 2020.
Rob Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-01771 Filed 1-31-20; 8:45 am]
BILLING CODE 4333-15-P