U.S. Fish and Wildlife Service Proposes to Limit Enforcement of Migratory Bird Treaty Act to Intentional, Not Incidental Acts

March 2020

The U.S. Fish and Wildlife Service (“FWS”) has issued a proposed rule to interpret the Migratory Bird Treaty Act (the “Act”) to prohibit only intentional killing or harming of migratory birds and not actions that only incidentally harm covered birds. FWS announced the proposed rule on January 30, 2020. The public comment period on the rule runs until March 19, 2020. Information on how to submit a comment is available here.

The century-old Act was one of the first conservation statutes enacted by Congress. The heart of the Act is its prohibition on doing or attempting various things to harm migratory birds without FWS authorization:

“Unless and except as permitted by regulations . . . it shall be unlawful . . . to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, [etc.], 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).)

This prohibition appears on its face to apply exclusively to intentional acts, e.g., “pursue, hunt, take, capture, kill, attempt to take. . . .” Over time, however, the Act’s prohibition was broadened by regulatory and judicial interpretation to also impose its criminal penalties on those who undertake activities only incidentally harming covered birds, whether the harm is avoidable or not. Most often, this interpretation has resulted in penalties against operators in the oil, gas, timber, and mining industries for accidental bird deaths inherent in lawful industrial activity. But, as noted by Judge Edith Jones of the Fifth U.S. Circuit Court of Appeals, it also threatens to make criminals out of “all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples.”

FWS’s proposed rule—which is based on a 2017 Department of Interior internal legal memorandum—claims that limiting the Act to only intentional harms will keep the Act true to its original purpose while reducing the risk of criminal prosecution the public faces under the current, broader interpretation. The new interpretation would also resolve a circuit split in the U.S. circuit courts of appeals regarding whether the Act’s text even supports the broader prohibition on incidental harm.

If the rule is finalized in its current form, the Act will no longer be interpreted to impose criminal penalties for incidental harm to migratory birds. However, operators affected by the Act should still be mindful of state-level regulations. California, for example, has issued an advisory asserting that incidental taking of birds is still prohibited in California pursuant to California Fish and Game Code regulations and will be enforced by the state, even if not by the FWS. It should also be noted that this change would not affect protections for bird species under the federal and California Endangered Species Act nor the Bald and Golden Eagle Protection Act.

Julio N. Colomba is an Associate at Harrison, Temblador, Hungerford & Johnson LLP in Sacramento, California.

© 2020 – Harrison, Temblador, Hungerford & Johnson LLP. All rights reserved. The information in this article has been prepared by Harrison, Temblador, Hungerford & Johnson LLP for informational purposes only and does not constitute legal advice.