Yesterday, the U.S. Fish and Wildlife Service (Service) announced a final regulation that defines the scope of the Migratory Bird Treaty Act (MBTA).
Consistent with the text, purpose and history of the MBTA, the final regulation clarifies that conduct resulting in unintentional (incidental) injury or death of migratory birds is not prohibited under the MBTA. This rule provides regulatory certainty to the public, industries, states, tribes and other stakeholders about implementation of the MBTA and best practices for conservation.
“We have restored the original meaning and intent of the Migratory Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will not prosecute landowners, industry and other individuals for accidentally killing a migratory bird,” said U.S. Secretary of the Interior David L. Bernhardt.
“An open and transparent public input process guided today’s action, which emphasizes President Trump’s commitment to conservation and regulatory certainty,” said Aurelia Skipwith, Director of the U.S. Fish and Wildlife Service.
The press release, frequently asked questions and other supporting documents are available online at: https://www.fws.gov/regulations/mbta/.
WHAT THEY ARE SAYING
Mike Dunleavy, Governor, Alaska: “Alaska is a nursery to many migratory bird species. Alaskans celebrate the arrival and departure of these birds on their migrations and for the subsistence and other uses they support. We will work to sustain these species though reasonable implementation of state and federal statutes and regulations, including the MBTA. I congratulate the Trump Administration as it continues to bring sanity to our country’s regulations and further empower states’ rights through this action and other logical reform. Advocacy groups have spent decades twisting and contorting a clear law through regulatory overreach. This proposed rule will restore logic and rationality to an important and successful environmental law.”
Zippy Duvall, President, American Farm Bureau Federation: “The American Farm Bureau Federation is pleased to learn that the Department of the Interior is finalizing important updates to the Migratory Bird Treaty Act. The final rule clarifies that the scope of the Migratory Bird Treaty Act applies only to intentional injuring or killing of birds. While farmers and ranchers support the protection of American wildlife, they should not be subject to criminal prosecution for the unintentional take of a migratory bird.”
Tammy Pearson, Commissioner, Beaver County, Utah: “The proposed changes to the Migratory Bird Treaty Act are long overdue. The need to clarify what is NOT criminal ‘take’ is important for energy, mining, ranching and other industries that are critical to the economic stability of rural families, communities and counties. This has been a giant thorn in the side of economic development for far too long, with projects being delayed for the potential harm that might happen to a bird despite the developer's best intentions and protective efforts. These clarifications to the ‘intent of the person’ are needed to be made to protect our local farmers and ranchers in their everyday operations.”
David Holt, President, Consumer Energy Alliance: “We commend the efforts of the Department of the Interior to provide clarity with respect to safeguarding migratory birds. This rule seeks to provide much-needed regulatory certainty for critical energy infrastructure projects that will allow consumers to receive new, cleaner power at affordable prices and in a timely manner. This rule leaves intact the critical safeguards needed to minimize harm to wildlife while providing clear guidance for renewable and traditional energy companies. The efforts by the Department are essential to ensuring that families, farmers, and small businesses receive affordable, reliable, and increasingly cleaner energy.”
Jim Magagna, Executive Vice President, Wyoming Stock Growers Association: “WSGA welcomes the efforts of the U.S. Fish and Wildlife Service and the Department of the Interior to adopt a long overdue commonsense definition of the prohibition of ‘take’ under the MBTA. This action will enable and encourage farmers, ranchers and other landowners to become true partners in providing habitat and safety for migratory birds rather than operating in fear of being prosecuted for an unintended take.”
Thomas Pyle, President, American Energy Alliance: “The American Energy Alliance strongly supports this long overdue rationalization of the application of the Migratory Birds Treaty Act. The MBTA clearly is meant to stop the specific targeting of migratory birds for harm, not to halt perfectly legitimate and innocent uses of private property. In criminalizing such legitimate uses of property, the previous overbroad application of the MBTA was an unacceptable infringement on economic freedom and property rights. This rule maintains protections for migratory birds while preventing abusive applications of law.”
Erik G. Milito, President, National Ocean Industries Association: “The Migratory Bird Treaty Act is at the core of American conservation, and this rule unifies the intent of the law with the repeated findings of U.S. courts. NIMBY-inspired litigation has been used in the past to hold reasonable and responsible activities, including wind energy development, hostage. The clarity provided by Interior establishes regulatory certainty and will continue to balance economic growth with environmental considerations.”
Jonathan Wood, Senior Attorney, Pacific Legal Foundation: “In a free society, criminal laws cannot be so open ended that any law-abiding person could be threatened with prosecution for innocent acts. The final rule properly rejects the worst types of overcriminalization previously resulting from Migratory Bird Treaty Act enforcement. Fortunately, there are many ways to conserve native birds without eroding basic principles of Due Process.”
Mallori Miller, Vice President of Government Relations, Independent Petroleum Association of America: “The Independent Petroleum Association of America (IPAA) supports the goal of the Fish and Wildlife Service to conserve migratory birds and believes this goal can be achieved in conjunction with responsible development of our nation’s natural resources. We are glad to see the scope of incidental take narrowed back to the original intent of the Migratory Bird Treaty Act.”
Louis Finkel, Senior Vice President, Government Relations, National Rural Electric Cooperative Association: “NRECA applauds the administration’s efforts to clarify the scope of the Migratory Bird Treaty Act to ensure consistent interpretation and implementation. The rule will provide greater certainty for electric cooperatives as they work to maintain and modernize the electric grid while reducing the impacts of electrical equipment on migratory birds.”
Mike Brown, County Commissioner, Johnson County, Kansas: “Innocence until proven guilty is a concrete tenant of our society and our country. The accidental and/or unintentional harming of any wildlife while, absolutely a tragedy, and in no way a willful act, should not cause concern of criminality for any American. I am grateful the Department of the Interior has been working hard toward codification of these rights. The Trump Administration has accomplished similar goals in other parts of the Federal Government, and I applaud the efforts and successes of the Secretary of the Interior, David Bernhardt, and his team. Thank you again, and please continue to keep making our collective America ever-greater.”
Kathleen Sgamma, President, Western Energy Alliance: “Western Energy Alliance applauds this rule on the Migratory Bird Treaty Act. Congress did not intend for criminal prosecution under the MBTA for accidental bird deaths, and three federal circuit courts have ruled as such. This rule codifies the court rulings, and reverses years of executive branch overreach. The Alliance is particularly supportive of this rule, as MBTA prosecution had been targeted at oil and natural gas companies even for low numbers of common birds deaths, while other industries went unscathed for much greater numbers, with some even being allowed to kill threatened and endangered species. This proposed rule corrects the selective enforcement that was so contrary to the American system of justice.”
Myron Ebell, Director Center for Energy and Environment: “CEI strongly supports the final rule revising implementation of the Migratory Bird Treaty Act. Clarifying the incidental take provisions according to what was intended in the legislation passed by Congress will help protect landowners and natural resource producers from regulatory harassment and malicious enforcement. It will also improve outcomes for bird populations by concentrating management actions on achieving the limited purposes of the Act. Together with the revised rules for the Endangered Species Act, the Trump administration under Secretary Bernhardt’s leadership are to be congratulated for the real progress they have made on reforming some of the worst aspects of the federal government’s regulatory regime for wildlife.”
Bette Grande, Chief Executive Officer, Roughrider Policy Center: “Clarifying the scope of the Migratory Bird Treaty Act is long overdue. Agenda driven politicians have stretched the MBTA to punish industry and citizens they don’t like. In 2011, the U.S. Attorney for North Dakota used the MBTA to sue three oil companies over the deaths of six ducks that were found dead at drilling locations and issued arrest warrants for individuals at the three companies. The charges were thrown out, but only after significant cost and uncertainty.
While the intent of the MBTA early last century is laudable, the provisions have been increasingly interpreted and enforced on ideological grounds. Picking winners and losers by selective interpretation must end. The power of the federal government and the creative interpretation of federal policy has a chilling effect on business and threatens the liberty of our citizens.
The broad interpretation of ‘take’ that disregards ‘intent’ moves the MBTA far beyond the intent of Congress. Unchecked, it will continue to burden our economy and the American people with increased costs, decreased efficiency and the prospect of criminal charges for lawful activity that results in unintended consequences. Clearly defining the scope of the MBTA is welcomed and will allow States to take the rightful role in protecting this precious natural resource.”
Shayne Madsen, Director of Political Law Center, Independence Institute: “The Independence Institute supports the Department of the Interior’s decision to clarify the Migratory Bird Treaty Act. With what should be considered a fair and equitable decision, the U.S. Fish and Wildlife Service and the Department of the Interior have decided to protect America’s wildlife and the rights of individual Americans. In the past, there have been times when the Migratory Bird Treaty Act has wrongly impacted the agricultural sector and the development of fossil-fuels and renewable-powered energy generation. The Independence Institute supports prosecuting those who intentionally take the species protected under the act. However, we also believe that the people who unintentionally take the protected species while conducting legally sanctioned activities should not be prosecuted. We commend the Department of Interior for working on this issue and support its endeavors to ensure laws and regulations are fair and equitable to all parties.”
Adam Brandon, President, FreedomWorks Foundation: “We are thankful for the actions taken by the Fish and Wildlife Service to cut red tape and reduce the regulatory burden on American businesses and landowners. For far too long, regulatory overreach from federal agencies has made criminals out of everyday Americans who unknowingly and unintentionally violate minute regulatory rules. Our federal government should not be setting regulatory traps for the American people to unwittingly fall into. These necessary changes proposed to the Migratory Bird Treaty Act are a huge step forward towards clarifying the law and ensuring that innocent citizens don’t get caught up in unnecessary adjudication.”
Rick Manning, President, Americans for Limited Government: “The Trump Administration continues to do their job or protecting Americans from prosecutions of inadvertent violations of obscure regulations. The latest example is Secretary of the Interior David Bernhardt’s release of new regulations dealing with the Migratory Bird Treaty Act, which creates certainty for ranchers and farmers so they can follow the law without fear of making a costly paperwork error. This is great for migratory birds, the environment as a whole, and those who wisely use the land for the benefit of the rest of us.”
