Migratory Bird Treaty Act Losing Force: Circuit Split Worsened by DOI Memorandum

By Jake Parker*

Over 1000 bird species across North America are losing protections enjoyed for nearly 100 years.[i] A circuit split between the Fifth and Second Circuit regarding the meaning of the word “take” in the Migratory Bird Treaty Act (the “MBTA”) has been exacerbated by a recent memo issued by the Department of the Interior (the “DOI”). This interpretation takes the narrower position that the Fifth Circuit’s took in U.S. v. Citgo Petroleum Corp.[ii] Under this interpretation, the MBTA only covers intentional killings of migratory birds.[iii]

The Solicitor’s Office of the DOI released on December 22, 2017 Memorandum M-37050 that effectively excluded “incidental takings” from liability under the MBTA.[iv] The opinion is important because it reverses the DOI’s prior interpretation of the MBTA as prohibiting incidental taking or killing of migratory birds.[v] And because the MBTA is a strict liability criminal statute in that a violation can occur regardless of whether the violator acted with intent, M-37050 is also significant because it likely will diminish criminal exposure for project developers and operators who might not be intentionally harming bird but are killing them nonetheless.[vi]

The MBTA makes it unlawful to “take” protected migratory birds.[vii] Specifically, the statute reads as follows: “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill…any migratory bird,” (emphasis added).[viii] The narrow interpretation of “take” from the Fifth Circuit relied on common law definition of “take” because it assumed that Congress intended to use the common law definition for a term of art unless it explicitly states otherwise.[ix] According to the Fifth Circuit, animals are taken by humans only when one acts affirmatively to reduce an animal to human control.[x]

Alternatively, the Second Circuit relied on prior case law and a slew of public policy considerations to determine that a lack of clear statutory text in the absence of a mens rea requirement results in strict liability for all takings, including those that are incidental.[xi] The court equated the dumping of harmful chemicals by FMC Corporation, an American chemical manufacturing company, to prior cases where hunters were held liable for killing migratory birds because both are affirmative actions.[xii] In addition, several public policy concerns were considered, including an assertion that businesses ought to take responsibility for the damage they cause lest their harmful practices continue.[xiii] The court pointed to statutory silence with regard to mens rea and the fact that liability under MBTA only amounts to fines as sufficient evidence that parties ought to be strictly liable for even incidental takings of migratory birds.[xiv]

Despite the definition of “take” being unsettled law based on a circuit split and a lack of explicit directive from Congress, the DOI has taken it upon themselves to greatly reduce the range of enforcement actions against ecologically harmful industry through the issuance of M-37050. The opinion stated that “[r]eading the MBTA to capture incidental takings casts an astoundingly large net that potentially transforms the vast majority of average Americans into criminals.”[xv] This reasoning echoes the view of the Fifth Circuit in United States v. CITGO Petroleum Corp when it said 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.”[xvi]

M-37050 has been condemned by top DOI officials from both parties going as far back as the Nixon administration.[xvii] In a letter to the department and Congress condemning the new interpretation, former top DOI officials said that, “[t]his legal opinion is contrary to the long-standing interpretation by every administration (Republican and Democrat) since at least the 1970’s,” and that, “[e]liminating agency authority to address incidental taking under the MBTA risks reversing the significant progress the nation has made in recovering and maintaining bird populations, ties the hands of the department’s wildlife professionals, and undermines our international obligations.”[xviii]

The DOI and several circuit courts seem overly concerned with average Americans being charged under the MBTA even though the vast majority of applicable bird deaths are caused by industry; nearly 40 million bird are killed by industry every year.[xix] It is unprecedented that incidental takings would not be covered by the MBTA. Under this new interpretation, bird deaths caused by oil spills like the 2010 Deepwater Horizon spill in the Gulf of Mexico would not be covered because oil companies would not be actively trying to harm the birds. As it stands, the MBTA is toothless. The position of the Second Circuit should be adopted as the majority as it is the interpretation that best aligns with public policy and the purpose of the MBTA.

*Jake Parker is an Associate Editor on MJEAL. He can be reached at parkjake@umich.edu.

The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Joshua Winchell, Official Number of Protected Migratory Bird Species Climbs to More than 1,000, U.S. Fish and Wildlife Serv., (Mar. 1, 2010), https://www.fws.gov/midwest/news/184.html.

[ii] See United States v. CITGO Petroleum Corp., 801 F.3d 477, 488 (5th Cir. 2015)

[iii] Sidley Austin LLP, Incidental Take of Migratory Birds No Longer Prohibited by the Migratory Bird Treaty Act, Sidley Austin LLP (Jan. 3, 2018), https://www.sidley.com/en/insights/newsupdates/2018/01/incidental-take-of-migratory-birds-no-longer-prohibited#1.

[iv] The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, Memorandum M-37050 (Dec. 22, 2017) (available at https://www.doi.gov/sites/doi.gov/files/uploads/m-37050.pdf).

[v] Sidley Austin LLP, Incidental Take of Migratory Birds No Longer Prohibited by the Migratory Bird Treaty Act, Sidley Austin LLP (Jan. 3, 2018), https://www.sidley.com/en/insights/newsupdates/2018/01/incidental-take-of-migratory-birds-no-longer-prohibited#1.

[vi] Id.

[vii] See 16 U.S.C. § 703 (2004).

[viii] Id.

[ix] Maxel Moreland, Migratory Bird Act: What Does Taking Mean?, (Dec. 8, 2015) https://uclawreview.org/2015/12/08/migratory-bird-act-what-does-taking-mean/#_ftn1; Citgo Petroleum Corp., 801 F.3d at 489.

[x] Id.see also Pierson v. Post, 1805 WL 781 (N.Y. Sup. Ct. 1805).

[xi] See U. S. v. FMC Corp., 572 F.2d 902, 908 (2d Cir. 1978).

[xii] Id. at 906.

[xiii] Id. at 907.

[xiv] Id. at 908.

[xv] See Memorandum M-37050 at 40.

[xvi] 801 F.3d 477, 489 (5th Cir. 2015)

[xvii] Letter from Lynn Scarlett et al., to Ryan Zinke, Secretary of the Interior (Jan. 10, 2018).

[xviii] Id.

[xix] Elizabeth Shogren, Industry Kills Nearly 40 Million Birds Per Year. The Trump Administration Doesn’t Think That’s Enough, Mother Jones (Mar. 18, 2018), https://www.motherjones.com/environment/2018/03/industry-kills-nearly-40-million-birds-per-year-the-trump-administration-doesnt-think-thats-enough/.

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