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New Migratory Bird Decision-Regulatory Relief or Environmental Harm?

On December 22, 2017, a new legal decision was published by the Department of Interior Solicitor regarding the Migratory Bird Treaty Act (Act). To understand the implications of this decision, one first needs to understand a little about the Act itself.  

One hundred years ago, the Migratory Bird Treaty Act (Act) was signed into law. The law was signed after bird populations were seriously decimated by both market hunting and the plume trade, in which birds were killed solely for their value as adornments for ladies’ hats. The extinction of the passenger pigeon, a bird once described as being so dense that their flocks blackened the sky, also contributed to the Act’s passage. The Act was based on a treaty between Canada and the US (subsequently joined by other countries) in which the countries agreed to conserve migratory birds by setting hunting seasons and eliminating hunting of insectivorous birds, specifically recognizing the latter group’s value for agricultural pest control. It currently protects 1,027 bird species ranging from sparrows to owls to ducks and geese. 

Since its inception, the Act has been modified several times by Congress, but still identifies that it is unlawful “to pursue, hunt, take, capture, kill, attempt to take, capture or kill . . . any migratory bird, any part, nest, or egg of any such bird . . . .” Over the years, the meaning of the word “take” has been the subject of a number of legal actions and decisions. Was it meant to apply to only deliberate actions in which a person knew they were harming a migratory bird, or did it apply to incidental or accidental harm? In other words, was there a difference between shooting a bird and having one die because it flew into a wind turbine, transmission line or oil pit, or because of habitat loss? The rulings on this question have been variable. Some have construed the need to expand the Act’s intent to situations not around in 1918, such as current energy development, while others have limited it to specific items mentioned in the bill. In one case, a “take” was identified when a heron rookery was removed, but not in another case in which logging of owl habitat occurred.  

Recent actions regarding the Act included a 2015 announcement by the US Fish and Wildlife to evaluate a permit system for accidental take, or non-deliberate harm incidental to a project operation. In January 2017, a decision was made by the then US Solicitor that “take” under the Act included any instance in which harm occurred whether it was intentional or not. In December 2017, that decision was reversed, specifying that “take” could only apply to deliberate acts. The December 2017 decision was alternately applauded or condemned, but statements that the Act was gutted are incorrect as the Act itself was not changed. So, what did it really do? 

In spite of all of the rhetoric, it is still not clear if the decision is binding, or if it is, if it applies to any agency outside of the Department of Interior. Its largest effect may be in reduced funding for violation review. However, many attorneys believe that the decision leaves the entire issue unresolved, results in a situation where each project is back to a case-by-case decision, and leaves projects open to actions/lawsuits by other agencies or entities. The National Wildlife Federation explained that the end result could be more uncertainty for industry, not less, and that the decision was “not optimal for wildlife , and not optimal for industry”. In addition, the decision does nothing to change how projects are permitted by individual states, particularly in Oregon, Washington, and California.  

Until the time the Act itself is changed or a Supreme Court decision rendered, there will still likely be uncertainty in its application and the effects of each project will still need to be individually evaluated. Rather than an industry win-environmental loss decision, it may shape up to be a “lose-lose” one. Taking proactive steps to minimize avian impacts may still be the best course to take in project development. 

For more information on how recent regulatory changes may affect your project or your wildlife concerns, please contact us. We are not attorneys, but specialists in getting projects completed in the most cost-effective and environmentally sustainable way possible.

The opinions expressed herein reflect practical applications of recent regulations and are not a substitute for legal advice.