FWS Reboot of MBTA Could Ease Renewable Permitting

The Fish & Wildlife Service has issued an Advance Notice of Proposed Rulemaking to develop a permitting framework under the Migratory Bird Treaty Act.[1] Comments on the ANPR will be accepted through December 3, 2021. Scoping meetings will occur throughout October and November.

This rulemaking is potentially a significant opportunity to establish that best management practices for certain industries are not expected to result in take of migratory birds, and thus should be exempted by rule from the statute’s reach—similar to the Nationwide Permit program under the Clean Water Act. FWS has specifically asked for input on several activity types, including:

• Communication and electric transmission infrastructure
• Wind power facilities (offshore and onshore)
• Solar facilities
• Marine bycatch
• Transportation and infrastructure[2]

Other industries potentially within the scope of the MBTA include forestry, ranching/grazing, and other agricultural activities. If successful, this rulemaking will bring conclusion to a lengthy tug-of-war over the MBTA’s application to incidental take.

Take Under the MBTA in Comparison to Other Statutes

The Migratory Bird Treaty Act makes it unlawful “to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess,” or sell or transport, migratory birds, their nests, and eggs.[3] It applies to a long list of species native to the United States and identified in one of four conservation treaties.[4] Because it is based on the treaty power, not the commerce power, the MBTA’s domestic reach is unconstrained by connections to commerce or navigable waters.[5]

“Take” historically meant, when applied to wild animals, “to reduce those animals, by killing or capturing, to human control.”[6] The Endangered Species Act, in its definition of “take,” includes an array of lesser intrusions, “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”[7] Regulations have in turn interpreted “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”[8]

In Babbitt v. Sweet Home, the Supreme Court upheld the regulatory definition of “harm” to include habitat modification as a reasonable interpretation of the statute. It found the inclusion of the term “harm” in the statute showed Congress wished to expand the statute’s take prohibition beyond the historical context. It also relied on the ESA Amendments of 1982, which enabled the issuance of permits for incidental take of species.[9] The Court reasoned that “[n]o one could seriously request an “incidental” take permit to avert §9 liability for direct, deliberate action against a member of an endangered or threatened species, but respondents would read ‘harm’ so narrowly that the permit procedure would have little more than that absurd purpose.”[10] Although Sweet Home didn’t mention it, the 1982 amendments also enacted ESA Section 7(o)(2), which provides that federal activity covered by an incidental take statement in a biological opinion is not a prohibited taking.[11]

In sum, relying on the availability of permits for incidental take, the Supreme Court permitted the ESA to reach activity not directed at species, if harm to species was a foreseeable consequence.

The MBTA presents the opposite situation, where a narrow reading of the statute has co-existed with a lack of a permit system. There is as yet no viable permitting system, though the statute gives Interior very broad authority “to adopt suitable regulations permitting and governing” take of migratory birds.[12] To date, courts have been reluctant to endorse FWS’ attempts to issue permits under the present regulatory structure.[13] The lack of certainty is particularly striking because the MBTA is a criminal statute; virtually any violation of the statute is a misdemeanor,[14] and knowing violations are felonies.[15]

Perhaps inevitably, the courts have reached conflicting results when construing the MBTA. The Fifth, Eighth, and Ninth Circuits have generally determined that the MBTA reaches take that falls within the traditional definition of the term.[16] Thus, the Ninth Circuit held in a case about logging and spotted owls, Seattle Audubon Society v. Evans, “[h]abitat destruction causes ‘harm’ to the owls under the ESA but does not ‘take’ them within the meaning of the MBTA.”[17] The Second and Tenth Circuits have imposed broader definitions, more consistent with the ESA’s definition, accepting prosecutors’ arguments that MBTA violations are strict liability crimes.[18]

Notably, the MBTA’s language more resembles the ESA’s particular prohibition relative to plants, that it is unlawful “to remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law.”[19] The Ninth Circuit has determined that “the section 9(a)(2) prohibitions relating to plants require ‘deliberate or malicious conduct.’”[20]

Similarly, the definition of “take” under the Marine Mammal Protection Act, more closely follows the traditional meaning as it does not include “harm.”[21] The Ninth Circuit has held that the MMPA “groups ‘harass’ with ‘hunt,’ ‘capture,’ and ‘kill’ as forms of prohibited ‘taking.’ The latter three each involve direct and significant intrusions upon the normal, life-sustaining activities of a marine mammal.…”[22] “Interpreting ‘harassment’ under the MMPA to involve a direct and significant intrusion also comports with a common understanding of the term ‘take,’ of which ‘harass’ is simply one form.”[23] This comports with the ordinary-meaning canon, under which “if context indicates that words bear a technical legal meaning, they are to be understood in that sense.”[24] While the ESA gives “take” a technical legal meaning, the MBTA and MMPA do not.

The Regulatory Catch-22 and Efforts to Address It

The government has been largely content with an ambiguous state of affairs, which leaves much to prosecutorial discretion. But, about six weeks after the Fifth Circuit oral argument in CITGO Petroleum, Interior began to work toward a comprehensive permitting program.[25] FWS stated it was “considering rulemaking to address various approaches to regulating incidental take of migratory birds.”[26] Its goal was “to provide legal clarity to Federal and State agencies, industry, and the public regarding compliance with the MBTA.”[27] That PEIS was not completed. Instead, in advance of the Presidential Transition in 2017, the Interior Solicitor, Hilary Tompkins, issued Opinion M-37041, Incidental Take Prohibited Under the Migratory Bird Treaty Act.[28] This M-Opinion stated it “presents the Department of the Interior's legal analysis supporting FWS's long-standing interpretation that the MBTA prohibits incidental take.”[29]

Later in 2017, M-37050 opined that the MBTA does not prohibit incidental take.[30] In an echo of 2015, this opinion nearly coincided with judicial action, the Ninth Circuit’s Turtle Island decision striking down a special use MBTA permit for the shallow-set longline swordfish fishery.[31]

Subsequently, M-37050 fell in court,[32] but the administration proposed and finalized a rule that the MBTA did not prohibit incidental take. The final rule was not issued until January 7, 2021. FWS issued a final rescission on October 4, which is effective December 3.

Now the Service has returned to the well to work on a comprehensive permitting system. Comments are due on December 3, 2021.

Lawson Fite is a partner in Marten Law’s Portland office. He can be reached at lfite@martenlaw.com.