Second Circuit Invalidates Trump Admin Decision over Migratory Bird Treaty Act

[bigtex]

Background: The Migratory Bird Treaty Act has been law for over 100 years and protects all migratory birds, everything from a mallard duck to a woodpecker to a eagle. Over the past 30 years there has been great debate whether the MBTA can be used to charge individuals/companies who did not intend to kill birds. This is mainly of interest to commercial energy industry, if a hawk flies into a windmill and dies should the company be liable and face prosecution??  Circuit courts across the country have taken on cases involving the issue and have issued differing opinions, some have said commercial industry is just as liable as someone who shoots a hawk, others have said the MBTA only applies to intentional acts.

Towards the end of the Obama term the Solicitor for the Department of Interior (DOIs legal counsel) issued an opinion that it was the opinion of DOI that the MBTA applies to both the intentional and unintentional take of migratory birds. Early on on in the Trump Admin the new Solicitor for DOI issued an opinion which stated the MBTA only applies to the intentional take of migratory birds and not the unintentional take of migratory birds.

The Second Circuit Court has disagreed with the Trump Admin, and the current Solicitor opinion is now invalid.

To Kill A Mockingbird: Federal Court Invalidates Department Of Interior's MBTA Opinion Letter
Friday, August 14, 2020

In her opening statement to an August 11 opinion, United States District Court Judge Valerie Caproni writes:

“It is not only a sin to kill a mockingbird, it is also a crime.”

Judge Caproni’s literary reference is the launching point for addressing the matter at hand: the validity of the Department of Interior’s December 22, 2017, Memorandum M-37050, which concludes that the Migratory Bird Treaty Act (MBTA) prohibition on the “taking” or “killing” of migratory birds applies only to deliberate acts intended to take a migratory bird. The M-Opinion announced the Trump administration’s view of the take prohibition in the MBTA, and states that the Trump administration will not seek criminal penalties against individuals and industries —such as oil and gas, as well as renewable energy— for incidentally taking migratory birds. The M-Opinion significantly limited the scope of the take prohibition in the MBTA, reducing the potential liability for development of infrastructure and renewable energy projects.

Judge Caproni writes that Interior’s opinion violates the letter of the law for the past century and contradicts Interior’s long held position that even incidental take or kill of a migratory bird violated the MBTA “irrespective of whether the activities targeted birds or were intended to take or kill birds.” Now, Judge Caproni stated,

“If the Department of the Interior has its way, many mockingbirds and other migratory birds that delight people and support ecosystems throughout the country will be killed without legal consequence.”

Judge Caproni devotes the remainder of her ruling explaining why the M-Opinion violates the Administrative Procedures Act as contrary to law. Judge Caproni rejected Interior’s narrow reading of the statute as lacking support in the plain language of the MBTA. As Judge Caproni explained,

“There is nothing in the text of the MBTA that suggests that in order to fall within its prohibition, activity must be directed specifically at birds. Nor does the statute prohibit only intentionally killing migratory birds. And it certainly does not say that only ‘some’ kills are prohibited.”

While Judge Caproni acknowledged that in drafting the MBTA Congress may have been “principally concerned” about over-hunting, Congress chose not to narrowly draw the prohibition in the statute to intentional take or kill of birds.

The August 11 order vacates the M-Opinion.

[WAcoyotehunter]

Its the right decision.  At a minimum, the spirit of the act needs to be recognized....

[bigtex]

Its the right decision.  At a minimum, the spirit of the act needs to be recognized....

I agree. If we don't want the MBTA to apply to incidental actions then Congress needs to amend the current law.

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[greenhead_killer]

So, according to current law here, you could accidentally hit a hawk with your vehicle and be criminally charged for it? Is that the correct interpretation? Or did I miss something?

[Pinetar]

So, according to current law here, you could accidentally hit a hawk with your vehicle and be criminally charged for it? Is that the correct interpretation? Or did I miss something?

You beat me to it greenhead, curious as well

[duckmen1]

I have been talking about this act and the decisions made to modify it for the last 2 months. I found out that laws had changed while looking up conflicts of our fisheries from commorants and how there is no management practices in the pacific flyway for comorants when the other 3 flyways harvest over 50,000 due to conflict removal. Thats another topic but glad to see people will be held responsible again as they should be.
The way the law was changed was like saying "I unintentionally had an accident while racing my car and people died and I shouldn't be held responsible". That would be nuts to say such a thing.

[northwesthunter84]

I agree, Congress needs to update the law as it stands.  I think we have made great strives in conservation and population restoration as compared to the utter decimation of the 19th and early 20th century. I have not seen data on how many of these cases are actually prosecuted.  I do personally know someone who got into an issue many years ago involving seagulls.  That instance warranted significant penalties due mainly to malicious intent.
I think going forward incidental death should be a case by case basis.  I mean if an impact study is performed, permit granted and a hawk flies into a windmill, is PSE at fault.  Is that really any different to someone driving a car and a bird of prey collides with them, not in the spirit of the law.
This is in the same book to me as the Marine Mammal Protection Act.  Populations need to be reevaluated and laws updated.

[duckmen1]

So, according to current law here, you could accidentally hit a hawk with your vehicle and be criminally charged for it? Is that the correct interpretation? Or did I miss something?

I'm an oil rig company with an oil spill in the ocean. Killing over 1 million birds. Should I be responsible? There are exceptions to every rule but..............

[duckmen1]

Case by case. If a car has a hawk collision while driving the freeway no.
But if a company has a polluted pond that's chemically toxic and knows it but leaves it accessible for protected birds I believe they should be held responsible.

[bigtex]

So, according to current law here, you could accidentally hit a hawk with your vehicle and be criminally charged for it? Is that the correct interpretation? Or did I miss something?

Could you, sure, will you, no.

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[bearpaw]

IMO: The law needs to be updated, I do not agree with blanket liability for accidental losses, the law needs to allow for case by case decisions based upon circumstances.

[bigtex]

Case by case. If a car has a hawk collision while driving the freeway no.
But if a company has a polluted pond that's chemically toxic and knows it but leaves it accessible for protected birds I believe they should be held responsible.

Agree.

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[bigtex]

IMO: The law needs to be updated, I do not agree with blanket liability for accidental losses, the law needs to allow for case by case decisions based upon circumstances.

Good luck writing a law like that. How would you codify every single possibility? All you would have to say is "it was an accident" and you wouldn't be liable.

USFWS was only going after the most serious offenders prior to Trump's Solicitor's opinion.

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[bearpaw]

IMO: The law needs to be updated, I do not agree with blanket liability for accidental losses, the law needs to allow for case by case decisions based upon circumstances.

Good luck writing a law like that. How would you codify every single possibility? All you would have to say is "it was an accident" and you wouldn't be liable.

USFWS was only going after the most serious offenders prior to Trump's Solicitor's opinion.

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I don't think you can address all specific situations, but the language could be modified to allow for situations deemed as non-intentional circumstances, which is what the Trump administration was probably trying to do.

USFWS was only going after the most serious offenders

The problem with that is who is in charge of that policy can/will eventually change!

[Fl0und3rz]

https://www.natlawreview.com/article/to-kill-mockingbird-federal-court-invalidates-department-interior-s-mbta-opinion


Obama Judge in SDNY.

https://en.wikipedia.org/wiki/Valerie_E._Caproni


Plaintiffs.

NATURAL RESOURCES DEFENSE COUNCIL, INC.

https://en.wikipedia.org/wiki/Natural_Resources_Defense_Council
https://www.opensecrets.org/orgs/summary?id=D000036133



NATIONAL WILDLIFE FEDERATION
https://en.wikipedia.org/wiki/National_Wildlife_Federation
https://www.opensecrets.org/orgs/summary?id=D000064937

Decidedly lefty, almost to the last donation.


Other plaintiffs.

NATIONAL AUDUBON SOCIETY;

AMERICAN BIRD CONSERVANCY;

CENTER FOR BIOLOGICAL DIVERSITY;

DEFENDERS OF WILDLIFE


As per usual, when Ds are in office, these organizations sue and Settle with captured administrations.  When Ds are not in office, these organizations sue and forum shop to a friendly forum.

It is no coincidence that this landed in Caproni's court.


As to the merits of the decision, this indeed looks to be a politically motivated outcome.

https://www.courthousenews.com/wp-content/uploads/2020/08/mockingbirds.pdf

Soon after, Congress implemented the Convention by passing the Migratory Bird Treaty Act.  Pub. L. No. 65-186, 40 Stat. 755 (1918).  Section 2 of the MBTA, as originally enacted, stated in relevant part:

unless and except as permitted by regulations . . . it shall be unlawful to hunt, take, capture, kill, attempt to take, capture or kill . . . by any means whatever . . . at any time  or  in  any  manner, any  migratory  bird,  included  in  the  terms  of  the  convention between  the  United  States  and  Great  Britain  for  the  protection  of  migratory birds . . . .

In 1936 Congress amended the MBTA by, inter alia, moving the phrases “at any time” and “in any manner” to the beginning of the list of prohibited actions, adding the phrase “by any means,” and adding “pursue.”  Pub. L. No. 74-728, § 3, 49 Stat. 1555, 1556.

Section 2 has not been substantially amended since.  Today, it provides:

[ u]nless and except as permitted by regulations . . . 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, any part, nest, or egg of any such bird . . . included in the terms of the conventions . . . .

As originally passed, it appears that such proscribed acts were directed to intentional acts, such as hunting, directed at the birds themselves.  This is true on its face.

As amended, unless there is contrary legislative intent evidence that shows that such amendment was intended to capture unintentional acts, the amendment appears to largely be of the housekeeping variety.


The court cites intent to sell (a further intended act directed at the birds themselves) as subject to further fines and penalties. 


And then it becomes apparent at what point incidental takes became a focus of enforcement.

From the early 1970s until 2017, Interior interpreted the MBTA to prohibit incidental takes and kills, imposing liability for activities and hazards that led to the deaths of protected birds, irrespective of whether the activities targeted birds or were intended to take or kill birds.  AR 900.

So far from it being an issue of Congress needing to codify that unintentional takes should NOT be included in the MBTA enforcement, it is EXACTLY the opposite.  What began as an act of agency overreach*apparently beyond the authority of the DOI, now must be codified into law by Congress to specifically include unintentional takes as an a proscribed act. 

Or we can just applaud judicial rewriting of legislation putting a stamp of approval on Agency overreach by politically unelected and unaccountable bureaucrats.




* In attempt to legitimize apparent overreach, the agency sought to formalize the legally tenuous process.

In 2015 FWS also announced its intent to begin a formal, comprehensive rulemaking process for regulating incidental take.  Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 Fed. Reg. 30,032 (May 26, 2015).

And President Obama sought to further feather the nest of its political patrons by giving it a further veneer of legitimacy.

In early January 2017 DOI’s Solicitor—the Department’s chief lawyer and the DOI official charged with issuing opinions setting forth DOI’s interpretation of federal statutes—issued a memorandum that reaffirmed DOI’s “long-standing interpretation that the MBTA prohibits incidental take.”  AR 43–44.  That memorandum, officially known as M-37041, will be referred to as the “Tompkins Opinion” after the DOI Solicitor who issued it.

This was promptly rescinded, as is usual with prior administrations' inauguration-eve Executive acts. That is the source of the complaint against DOI.



Ironically, the Judge acknowledges that any legislative history regarding the MBTA's proscription of unintentional activities (those not directed at birds) result in mixed signals, thereby conceding that there is not a persuasive case that the MBTA was intended to proscribe unintentional takings.