The Nickel Report

About to turn 100, the Migratory Bird Treaty Act of 1918 (MBTA) is among the oldest wildlife (or any environmental) laws. Yet major questions persist whether the Act applies to the unintended “take” of birds, and how to avoid criminal liability under the Act for many common and beneficial commercial activities.

Congress enacted the MBTA to implement a 1916 Convention with Great Britain for the protection of birds that migrate between Canada and the United States, and the Act was later amended to implement similar treaties between the United States and Mexico, Japan, and the Soviet Union. The MBTA imposes criminal liability for persons who

pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, … ship, … transport, … carry, … receive … at any time, or in any manner, any migratory bird, … or any part, nest, or egg of any such bird.

16 U.S.C. § 703.

Seemingly simple in its terms, the words of the Act focus on prohibiting specific actions directed at migratory birds. Yet the U.S. Fish & Wildlife Service’s interpretation of the Act has evolved to prohibit unintended bird deaths, including where the defendant took no action directed at a bird. This position has weighty consequences for the public, as there is no generally available permit to receive authorization for such unintended (or “incidental”) takes, and thus no mechanism to insulate against potential criminal liability under the Act.

Federal officials have targeted for MBTA enforcement – with mixed success – a range of activities that have unintentionally harmed birds, including waste discharges into storage ponds, aerial pesticide applications, logging, operation of oil production tanks and reserve pits, and wind power projects. As a result, the threat of criminal liability hangs over virtually any activity that might “incidentally” result in a dead bird (although the Service emphasizes that it exercises prosecutorial discretion to focus on activities that chronically kill birds). With over 1,000 bird species (which comprise roughly 90 percent of the bird species in North America) protected by the Act, and no mechanism to receive a permit or other protection against incidental take, the enforcement threat is far from idle and can have considerable impacts on a variety of commercial activities across the country. In fact, many companies feel compelled to implement costly or burdensome measures in avian protection plans in order receive favorable consideration from the Service, in its exercise of prosecutorial discretion, in the event a migratory bird is deemed to be taken by a company activity.

The majority of the federal courts of appeal to have considered the issue, however, have disagreed with the Service. Although the Second and Tenth Circuits held in 1978 and 2010 that the MBTA imposes strict criminal liability on industrial activities that unintentionally kill migratory birds, the Ninth, Eighth and Fifth Circuits disagreed in 1991, 1997 and 2015 decisions. The Fifth Circuit’s 2015 decision in United States v. CITGO Petroleum Corp. provides the most recent and arguably most comprehensive analysis. The court “agree[d] with the Eighth and Ninth circuits that a ‘taking’ is limited to deliberate acts done directly and intentionally to migratory birds … based on the statute’s text, its common law origin, a comparison with other relevant statutes, and rejection of the argument that strict liability can change the nature of the necessary illegal act.” The court found that Congress adopted the common law understanding of a wildlife “take,” which is to “reduce those animals, by killing or capturing, to human control,” and rejected the notion that “all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MBTA” under principles of strict criminal liability. The court held that, while the MBTA is a strict liability statute, it does not dispense with the actus reus element of an “affirmative action to cause migratory bird deaths,” and for that reason a “person whose car accidentally collided with the bird … has committed no act ‘taking’ the bird for which he could be held strictly liable…. Nor do the owners of electrical lines ‘take’ migratory birds who run into them.” Down 3-2 in the federal courts of appeal, the Service faced a dilemma: petition the Supreme Court for certiorari and risk a decision that agreed with the Fifth Circuit’s CITGO decision, proceed with their enforcement posture despite having lost in the majority of the federal appellate cases, or change course.

Shortly before the Fifth Circuit’s CITGO decision, the Service issued a National Environmental Policy Act (NEPA) scoping notice in May 2015 inviting public comment on options for establishing an MBTA permit program to authorize incidental take. Some commenters supported the ability to receive regulatory certainty and protection from potential criminal liability, while others questioned the Service’s authority to regulate incidental take or establish a permit program. Following CITGO, many wondered whether the Service would proceed with rulemaking to establish an incidental take permit program, with the hope of receiving greater judicial deference for its position if supported by an administrative record and challenged in an Administrative Procedure Act action. But although the Service stated in December 2016 that it still intended to propose regulations to govern incidental take of migratory birds, no regulations have been proposed.

Nearly two years have passed since CITGO; no petition for certiorari was filed, no MBTA incidental take regulations have been proposed, and the Service is now operating under a new administration with new political leadership at the department. Will the Service reconsider its position on incidental take, issue new policy or guidance, undertake rulemaking to either regulate or clarify its position on incidental take, or continue bringing incidental take enforcement actions? Will Congress step in to clarify the Act? How should industry sectors plan and structure their MBTA compliance programs in the meantime? These and similar questions about the future of MBTA implementation will compete for divided attention in the months to come.

Hunton & Williams advises and represents clients in matters arising under the MBTA and other wildlife, natural resources and environmental laws. Our environmental law practice is top rated, and one of the oldest and largest in the nation. We have been named Environmental Group of the Year by Law360 for the past seven consecutive years, and our environmental practice has been ranked band one nationally by Chambers USA since Chambers established national environmental rankings in 2009. Our natural resources and public land use practices work with all facets of rulemaking, permitting, litigating, counseling and lobbying under the ESA, NEPA, the Federal Land Policy and Management Act, National Forest Management Act, and other wildlife and land statutes and compacts. We advise a broad range of clients on natural resource matters, and help clients address every aspect of the rapidly developing and expanding area of wildlife law, including permitting, consultation, incidental take approval, and habitat planning. We also represent clients on complex, public land use projects and issues before the Bureau of Land Management (BLM) and US Forest Service (USFS). We have extensive experience in litigation arising from ESA rulemakings, as well as arising from BLM and USFS public land use and decisions. Hunton & Williams combines deep experience and strong contacts in the wildlife and public land use law arenas (including with the relevant federal agencies) to deliver effective and efficient advice and solutions.