The Solicitor's M-Opinion and the proposed rule cite due process concerns as one justification for rolling back critical protections for migratory birds under the MBTA. Comment: One commenter recommended imposing stricter regulations along main migratory routes where high concentrations of MBTA species are biologically vulnerable (including stopover areas along migration routes, and core breeding/wintering areas), especially for threatened or endangered species or Species of Conservation Concern. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. A primary reason for engaging in this rulemaking is to remove any uncertainty in application of the statute to alleviate precisely the concern voiced by this comment. The Canadians reasonably want some assurances from the United States that if they let those birds rear their young up there and come down here, we will preserve a sufficient supply to permit them to go back there. The States own and hold migratory birds in trust for their citizenry. The Migratory Bird Treaty Act of 1918 (MBTA) prohibits taking, attempting to take, capturing, killing, selling/purchasing, possessing, transporting, and importing of migratory birds (including ground-nesting species), their eggs, parts and nests, except when specifically authorized by the Department of the Interior. The number of States and the policy details are unknown. Since then, some of the Nation's governors, State legislatures, and mayors jointly requested a suspension of public comment periods Start Printed Page 1144during this national emergency. Fish and Wildlife Service. 12721; Convention between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, U.S.-Mex., Feb. 7, 1936, 50 Stat. Response: Best management practices (BMPs) have never been required under the MBTA, other than as part of our occasional application of the special purpose permit provision to authorize Start Printed Page 1148incidental take under certain circumstances, as there has never been a specific permit provision for authorizing incidental take that would require their implementation. Following Wind Energy Guidelines, which involve conducting risk assessments for siting facilities. Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. We note, however, that NEPA does not provide substantive environmental protections by itself. The Service sought feedback from Tribal representatives to inform the rulemaking process and address Tribal concerns. This law says: No person may take (kill), possess, import, export, transport, sell, purchase, barter, or offer for sale, any migratory bird, or the parts, nests, or eggs of such bird except as may be permitted under the terms of a valid permit Under the MBTA it is illegal to destroy a nest that has eggs or chicks in it or if there are young birds that are still dependent on the nest for survival. Regarding the commenter's statements on enforcing a negligence standard, the misdemeanor provision of the MBTA contains no mental state requirement and is a strict-liability crime. Comment: Multiple Tribes stated that the United Nations Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP), endorsed by the United States in 2010, recognizes that indigenous people must give Free, Prior and Informed Consent for projects affecting their interests, prior to approval of any project affecting their land or territories. Given the uncertain future of M-Opinion 37050 and accompanying legal vulnerability of the proposed rule, it would be prudent for the Service to put the proposed rulemaking on hold until the courts have determined whether the M-Opinion on which it is based withstands legal scrutiny. In addition, commenters noted that the 45-day comment period was inadequate for a rule that proposes to substantially change decades of conservation policy and hinder bird conservation in the United States, given the current National State of Emergency in response to the novel Covid-19 coronavirus. The court reasoned that it is difficult to conceive of an activity where kill applies, but hunt and take do not. This approach compromised the ability of commenters reviewing the proposed rule to understand fully the effects of the rule. These efforts and partnerships are not impacted by this rulemaking, and data will continue to drive the actions of the Service to protect migratory birds. To wit, the guidelines themselves state, it is not possible to absolve individuals or companies from liability under the MBTA. Fish and Wildlife Service (hereafter Service). Response: A wide array of statutory mandates provide protections to wildlife, including migratory birds. Response: We acknowledge this comment and submit that we will continue to implement relevant domestic laws and regulations and provide technical advice and assistance to our treaty partners and encourage continued conservation and protection of migratory birds to the extent authorized by their domestic laws. Dictionary definitions of the term take at the time of MBTA enactment were consistent with this historical use in the context of hunting and capturing wildlife. We note that even under the prior interpretation of the MBTA, there was no general mechanism to provide for the collection of project-level data on impacts to avian species. The status of migratory bird populations in the areas described by the commenter may be relevant in our decision to permit take under the Service's current permit system. Accordingly, an interpretation with broad implications for the American public was implicitly adopted without public debate. This rulemaking will not significantly affect the Service's obligations under other legal statutes that protect migratory birds. Comment: Multiple commenters opposed the proposed action because recent studies have demonstrated that North American bird populations are facing significant population declines. However, other actions such as poisoning bait to control birds depredating on crops would kill birds outside the context of hunting. The inconsistency among States in State code may complicate industry understanding of expectations across the many States in which they operate, potentially requiring multiple State permits to conduct business. Birds have economic and ecosystem services value, and, if birds continue to decline, the economy and ecosystems will be compromised. documents in the last year, 439 Comment: Several commenters stated that some estimates of bird mortality used in the rule are more than a decade old and out of date. Under the trust responsibility, the United States is legally responsible for the protection of Tribal lands, assets, resources, and treaty rights for the benefit of Tribes. Even if the terms were ambiguous, the proposed rule's attempt to meld all the prohibited conduct into a singular meaning is unsupported by any canon of statutory interpretation. determined that no active bird nests are present. . The degree to which these small business in NAICS 213111 may be impacted by the rule is variable and is dependent on location and choice. Some courts have attempted to interpret a number of floor statements as supporting the notion that Congress intended the MBTA to regulate more than just hunting and poaching, but those statements reflect an intention to prohibit actions directed at birdswhether accomplished through hunting or some other means intended to kill birds directly. We disagree with the commenter's interpretation of the MBTA and our nondiscretionary and discretionary duties to implement the MBTA. Comment: A few commenters stated that the Department of the Interior's reinterpretation of the MBTA removed a broad layer of protection to birds against industrial harms and requested that the Service explain in the preamble how such action compounds or alleviates the findings of certain reports and other available science and biological dataincluding but not limited to data from Partners in Flight, the State of the Birds report, Christmas Bird Counts, Breeding Bird Surveys, and project-level nesting and demographic information that the Service has on file. Moreover, M-37050 is consistent with the Fifth Circuit appellate court decision in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. The notion that take refers to an action directed immediately against a particular animal is supported by the use of the word take in the common law. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. . This rulemaking will establish a firm position on enforcement of the MBTA as it applies to incidental take and will not provide a moving target. Although longline fishing is regulated under the Magnuson-Stevens Act, seabirds are not afforded protection as they do not fall under that statute's definition of bycatch. For example, pursuant to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), the Oil Pollution Act, and the Clean Water Act, the Department is authorized to assess injury to natural resources caused by releases of hazardous substances and discharges of oil to compensate the public for lost natural resources and their services. This rule would not produce a Federal mandate on local or State government or private entities. The commenters suggested that these later congressional interpretations should be given great weight and that failure to include incidental take within the scope of the statute would virtually nullify these amendments. Protection of Migratory Birds: Hearing on H.R. Comment: Multiple commenters noted that M-Opinion 37050 and the proposed action will likely result in increased mortality of migratory birds. Comment: Multiple commenters supported the proposal because, in their view, criminalizing incidental take does not advance conservation and other mechanisms could be used to protect birds. The MBTA's legislative intent is to prevent needless losses, establish closed seasons for hunting, prohibit the taking of nests or eggs of migratory game or insectivorous nongame birds except for scientific or propagating purposes, further establish longer closures for certain species, and provide for the issuance of permits to address the killing of specified birds. Mahler, 927 F. Supp. Response: This rule would not violate any laws or executive branch policy regarding unfunded mandates. Response: The procedures followed in this rulemaking process were appropriate and lawful. Congress specifically demonstrated its familiarity with the development of take liability in 1998 when it tackled the unfairness of strict liability in baiting cases. Section 2 of the MBTA groups together five verbspursue, hunt, take, capture, and kill. Accordingly, the statutory construction canon of noscitur a sociis (it is known by its associates) counsels in favor of reading each verb to have a related meaning. . While it is illegal to collect, possess, or by any means transfer possession of migratory bird nests, the MBTA does not contain any prohibition that applies to the destruction of a bird nest alone (without eggs or birds in it), provided that no possession occurs during destruction. See Canada Convention, 39 Stat. any migratory bird, [or] any part, nest, or egg of any such bird. 16 U.S.C. 1531-44), requires that The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. 16 U.S.C. The Service will continue to work with State and local governments as well as industry to implement voluntary measures to reduce impacts to migratory birds. Further, as a practical matter, inconsistency and uncertainty are built into the MBTA enforcement regime by virtue of a split between Federal Circuit Courts of Appeals. Take and possession under MBTA can be authorized through regulations, such as hunting regulations, or permits, e.g., salvage, research, . Search for volunteer opportunities around the country, News about wonderful wild things and places, FWS is taking steps to mitigate climate impacts, Search employment opportunities with USFWS, Minnesota Valley NWR - Fire as a Land Management Tool, Candidate Conservation Agreements (CCA & CCAA), Coastal Barrier Resources Act Project Consultation, Coastal Barrier Resources System Property Documentation. One Member of Congress even offered a statement that explains why the statute is not redundant in its use of the various terms to explain what activities are regulated: [T]hey cannot hunt ducks in Indiana in the fall, because they cannot kill them. . Additionally, after publication of the final EIS, the Government of Canada submitted a further comment expressing concern regarding this rule. This analysis really shows that the benefits of the proposed rule are overblown and targeted to a few companies that just do not want to be regulated. Regarding enforcement of Federal law, the Department and the Service are obligated to interpret and follow the law established by Congress. We established 45 days as an appropriate period for public comment on the draft EIS. It is difficult to imagine any scenario under which the Federal agencies could review and give serious consideration to the comments it will receive on this proposed rule, let alone incorporate them into a final EIS, ROD, and final rule. In addition to the MBTA, other Federal and State laws protect birds and require specific actions to reduce project-related impacts. It did not hide the elephant of incidental takings in the mouse hole of a narrow appropriations provision. The agency in essence has already been implementing the underlying policy change that is reflected in the rulemaking without the benefit of public review and comment at the time it made that policy change. The majority of Minnesota's birds are protected by the federal Migratory Bird Treaty Act of 1918 (MBTA), which prohibits the take of birds, their nests, and/or their eggs, whether intentional or unintentional. A draft EIS, issued subsequent to the proposed rule on June 5, 2020, analyzed various alternatives, some of which were discussed in the public webinars conducted as part of the NEPA scoping process. . The commenter went on to note that there is no evidence presented as to the economic burden for implementing voluntary best management practices. It is misleading and simply false to suggest, as Interior does, that any regulation of incidental take under the MBTA is unduly burdensome. 2010) (concluding that under an incidental take interpretation, [t]he actions criminalized by the MBTA may be legion, but they are not vague). Finally, chimneys lined with metal should always be capped, as birds that enter these can easily become trapped. See United States v. Moon Lake Electrical Ass'n, 45 F. Supp. "Take" broadly means to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, transport." WHAT TOWER OPERATORS CAN DO TO PROTECT RAPTORS AND NESTS ON TOWERS The Service engaged the NEPA process at the time it began to consider rulemaking to codify the M-Opinion (the reasonable alternatives include potential outcomes of the proposed rulemaking), and that process will be complete before any final formal agency decision is made. Here he has a transient property in these animals usually called game so long as they continue within his liberty, and may restrain any stranger from taking them therein; but the instant they depart into another liberty, this qualified property ceases. Comment: Multiple commenters recommended that the Service abandon the current proposed action and revert to the previous M-Opinion and the 2015 MBTA proposal for developing and implementing a general permit program that works with industry to identify best practices to avoid or minimize avian mortality. A, Title III, Sec. The degree to which these small businesses may be impacted by the rule is variable and is dependent on location and choice. at 5922-23; see also draft EIS at 3 (stating that the purpose and need for the action is to improve consistency in enforcement of the MBTA's prohibitions). 1202. NEPA also requires Federal entities to assess potential mitigation of unavoidable adverse environmental impacts, which may include analysis of project design or mitigation measures that reduce potential impacts to migratory birds. Learn more about structure The commenters note that migratory birds Start Printed Page 1158are a shared hemispheric resource, for which we are only custodians and stewards while they are within the borders of the United States. We are codifying that interpretation in this rulemaking. Response: We disagree that this rulemaking will result in a substantial increase in the number of migratory birds killed. The 1986 amendment and corresponding legislative history reveal only an intention to close a loophole that might prevent felony prosecutions for commercial trafficking in migratory birds and their parts. Rather, it should extend that comment period by 45 days or more. Additional States may create new regulations to clarify that they have jurisdiction to regulate or otherwise oversee incidental take of migratory birds. and services, go to Response: The Service appreciates the perspective of the entities that support this rulemaking. Whether other statutes provide protection to migratory birds is not directly relevant to codifying our current interpretation. This prototype edition of the The Service will continue to manage and enforce the provisions of the MBTA as they relate to activities directed at migratory birds, including ensuring those holding take permits are accountable for complying with these permits. Any ambiguity inherent in the statute's use of the terms take and kill is resolved by applying established rules of statutory construction. Response: The commenters are correct that whether the Service interprets the MBTA to prohibit or exclude incidental take, that interpretation will not by itself resolve the current split in the circuit courts. We have determined that this rule regarding the take of migratory birds will have no effect on species listed under the provisions of the ESA. Response: In the draft EIS, we considered an alternative under which the Service would promulgate a regulation defining what constitutes incidental take of migratory birds and subsequently establish a regulatory general-permit framework. The commenter recommends the Service review its own web pages and the scientific literature to show that incidental take of birds is a significant problem. Finally, in 1918, Federal regulation of the hunting of wild birds was a highly controversial and legally fraught subject. Since the Small Business Size Standard is less than 1,250 employees, we assume all businesses are small. Of the five referenced verbs, threepursue, hunt, and captureunambiguously require an action that is directed at migratory birds, nests, or eggs. documents in the last year, 825 It does not require any delegation from Congress other than the delegations to the Secretary already included in the terms of the statute. Not all small businesses will be impacted by this rule. Comment: One commenter suggested that the proposed rule should be abandoned because the meanings of take and kill need to be given broad interpretations to achieve the remedial purpose of protecting wildlife and remain consistent with the common law definitions of these terms. Comment: If the press release accepted quotes from industry and government entities, it should also have included quotes and perspectives from environmental NGOs or ornithologists to comply with APA fairness rules. Under the new interpretation, this is no longer the case. 20080 Before the House Comm. Id. The Service will continue to ensure that migratory birds are protected from direct take. Ind. The Government of Canada submitted comments on the draft EIS associated with this rulemaking. Something temporarily or permanently constructed, built, or placed; and constructed of natural or manufactured parts including, but not limited to, a building, shed, cabin, porch, bridge, walkway, stair steps, sign, landing, platform, dock, rack, fence, telecommunication device, antennae, fish cleaning table, satellite dish/mount, or well head. Response: Our interpretation set forth in the proposed rule is that take incidental to the purpose of the action is not prohibited under the MBTA. The EIS notes that it may result in a measurable increase, but we do not expect it to be substantial. Dom.). 2015), which held that the MBTA does not prohibit incidental take. We will continue to cooperate with States that request our assistance in developing best management practices for various industries that minimize incidental take of migratory birds. This feature is not available for this document. Likewise, the Chief of the Department of Agriculture's Bureau of Biological Survey noted that he ha[s] always had the idea that [passenger pigeons] were destroyed by overhunting, being killed for food and for sport. Protection of Migratory Birds: Hearing on H.R. Executive Order (E.O.) Therefore, this rule would not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. In these cases, there may be no typical nest The Department appears to be rushing through this entire process to meet an arbitrary timeline. 11, 1973)] marked the first case dealing with the issue of incidental take.). You will be directed to the following website in 5 seconds: We hope your visit was informative and enjoyable. 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