Endangered Species Law & Policy

On August 11, 2020, a federal district court in New York ruled that the unintentional or incidental “take” of migratory birds is a crime under the Migratory Bird Treaty Act (“MBTA”), vacating a Department of the Interior Solicitor’s Opinion (M-37050, referred to as an M-Opinion), which had determined that the MBTA does not apply to incidental take.

The now-vacated M-Opinion, issued by the Trump Administration in December 2017, had withdrawn and replaced an earlier M-Opinion issued in the last days of the Obama Administration (Opinion M-37041), which had interpreted the MBTA consistent with the district court’s recent ruling.  The Department of the Interior began enforcing the MBTA against incidental take of migratory birds in the 1970s, which resulted in criminal convictions and multi-million dollar settlements across several industries.  However, courts in different parts of the country have differed on whether the MBTA applies to incidental take.  Both M-Opinions were attempts to promote a uniform interpretation of the Act.

The district court’s ruling vacating the Trump Administration’s M-Opinion will likely be appealed.  Earlier this year, the Department of Interior proposed a rule codifying the now invalidated M-Opinion and recently concluded the public comment period on a Draft Environmental Impact Statement for the proposed rule.  It is unclear how the district court’s ruling will affect a pending proposal.