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On December 22, 2017 the U.S. Department of the Interior’s (“DOI”) Office of the Solicitor issued Memorandum M-370501 (the “M-Opinion”) interpreting the take prohibition of the Migratory Bird Treaty Act2 (“MBTA”) to apply only to affirmative actions that “have as their purpose the taking or killing of migratory birds, their nests, or their eggs.” This legal opinion reversed the DOI’s long-standing interpretation of the MBTA, formalized by the Obama administration in Solicitor Opinion M-37041 just a year prior, which asserted that the MBTA prohibits both intentional and incidental take of migratory birds. Since the publication of the M-Opinion, the regulated community has drawn comfort from the DOI’s new policy. But while legally it is clear that the M-Opinion is binding upon the U.S. Fish and Wildlife Service (“USFWS” or “Service”) it represents such a drastic reversal from decades of Service policy and practice that questions have persisted about how the Service would implement the new policy. The USFWS has finally answered those questions with a Guidance Memorandum issued on April 11 (the “Service Guidance”). The Service Guidance falls in line with the DOI’s new interpretation, and in some cases takes it a step further than the M-Opinion itself, but there are still a few caveats of which the regulated community should be mindful.
USFWS Implementation of the M-Opinion
The Service Guidance itself consists of a very brief acknowledgment of the M-Opinion, but includes an attachment of Frequently Asked Questions that addresses a number of different issues and circumstances. The following is an overview of the issues addressed and brief perspective on the import of those issues and application of the new policy:
- The MBTA’s take prohibitions only apply when “the purpose of an action is take of migratory birds, their eggs, or their nests.” The Service Guidance clarifies that violations of the MBTA require the intent to take. A person’s knowledge that an activity will result in the incidental killing of migratory birds, or the fact that it is reasonably foreseeable that the action will kill migratory birds, is not relevant to a take analysis under the MBTA. The only relevant factor is whether a person undertakes an action for the specific purpose of killing migratory birds. The Service’s acknowledgement of this central aspect of the M-Opinion should provide comfort to project developers, as even projects that might foreseeably result in the killing of migratory birds, such as the construction and operation of a wind farm, will not give rise to violations of the MBTA provided that the intent of the activity is not to kill migratory birds.
- The legality of an activity does not affect the determination of whether it results in a violation of the MBTA. The Service Guidance makes clear that even when migratory birds are killed as a result of an illegal activity (e.g., the illegal application of a pesticide, or the unauthorized release of hazardous substances or petroleum products) it does not give rise to an MBTA violation without evidence of a specific intent to kill birds. This position has important implications in the enforcement context, as federal agencies have historically sought to impose penalties under the MBTA for bird deaths resulting from violations of other environmental statutes, such as oil spills which violate the Oil Pollution Act and other similar accidents or upsets. However, the Service Guidance notes that the facts that birds died as a result of the illegal activity may provide additional evidence for prosecuting the illegal activity and may also give rise to natural resource damage claims where appropriate.
- The M-Opinion does not affect protections provided under the Endangered Species Act (“ESA”) or the Bald and Golden Eagle Protection Act (“BGEPA”). Each of these statutes contains its own incidental take prohibition, and those remain unaffected by the M-Opinion or the Service Guidance. Any MBTA-listed species that is also protected by the ESA or BGEPA retains the full extent of the protections provided by those statutes. As such, project developers should remain mindful that unauthorized incidental take of eagles and ESA-listed species remains unlawful and can result in civil and criminal enforcement.
- Project impacts on migratory birds should still be considered during the National Environmental Policy Act3 (“NEPA”) review process. Although the M-Opinion establishes that the MBTA does not apply to incidental take, mortality of migratory birds is still an impact to the human environment that must be considered in the NEPA review of a project. While NEPA does not impose any substantive standards or requirements, any project with a federal nexus will likely be scrutinized for its impacts on migratory birds – particularly those projects where the lead agency is the USFWS or even the U.S. Army Corps of Engineers. Therefore, there may still be significant benefits to implementing measures to avoid and minimize impacts on migratory birds during project development, as those measures could simplify and streamline the NEPA review process and even potentially avoid the need to prepare a lengthy Environment Impact Statement.
- Future settlement agreements for take of listed species or eagles, should not include restrictions, minimization measures, or mitigation for purposes of MBTA compliance. While project developers can still undertake voluntary measures related to migratory birds, it must be made clear that these actions are not required by the MBTA. The Service Guidance confirms that the USFWS will no longer pursue MBTA charges against project developers that incidentally cause eagle fatalities. Thus, the issuance of the M-Opinion and this statement in the Service Guidance clearly signal that the USFWS’ practice of using the MBTA in enforcement of eagle fatalities in addition to or in lieu of BGEPA (which had largely been due to the lower intent requirement under the MBTA) is now obsolete. It should be noted, however, that the M-Opinion is not technically binding upon the Department of Justice (“DOJ”). While it is to be expected that DOJ will defer to the M-Opinion and the Service Guidance in its own interpretation and application of the MBTA, legally it could seek to apply the MBTA in an enforcement action even if only as leverage to extract a plea and settlement from a company that wishes to avoid litigation.
- Future permits under the ESA or BGEPA, or inter-agency consultations under Section 7 of the ESA, should not include restrictions, minimization measures, or mitigation for purposes of MBTA compliance. While the M-Opinion limited itself to the question of whether incidental take of migratory birds is a violation of the MBTA, the Service Guidance takes the conclusion that it is not to the next logical step – that the USFWS should not condition the issuance of permits or approvals under the ESA or BGEPA on the implementation of measures designed to protect migratory birds.
Conclusions and Future Considerations
Energy and other project developers should take some comfort in knowing that the USFWS has finally adopted guidance that is consistent with the M-Opinion and indicates that the Service will no longer seek penalties or enforcement for incidental take of migratory birds under the MBTA. That policy, coupled with the Service’s stance that it also will not condition settlement agreements or permits on the implementation of measures to protect or conserve migratory birds, finally trim the talons that had made the MBTA such an important and influential statute.
However, as highlighted by the Trump Administration’s swift reversal of the recent Obama-era M-Opinion that construed the MBTA as prohibiting incidental take, the executive branch can abruptly change its position on this issue at any time, and a future Democratic administration may be inclined to do just that. In light of the fact that most energy infrastructure projects are operational for decades, project developers would be well-served to continue to document any and all steps taken to minimize the impact of their projects on migratory birds and to maintain records of all correspondence with the USFWS about these efforts.
Finally, it is worth noting that a group of Senate Democrats earlier this month sent a letter to the Department of the Interior asking it to reconsider the M-Opinion and continue enforcement of the MBTA in the same manner as “every administration from across the political spectrum has done for more than forty years.” While that letter may ultimately have no effect in this highly partisan political environment, it highlights that the scope of the MBTA’s take prohibition remains an active political issue and the December 2017 M-Opinion is unlikely to be the final word on whether the MBTA take prohibition extends to incidental take.
Locke Lord’s environmental attorneys routinely advise clients on compliance with the MBTA and other wildlife statutes and are available to provide more information and insight on the issues discussed in this Locke Lord QuickStudy.