Under the facts of this case, the MBTA does not give `fair notice as to what constitutes illegal conduct' so that [the farmer] could `conform his conduct to the requirements of the law.' 703, Historical and Statutory Notes. The NRDC district court predicated its broad reading of kill primarily on the notion that a narrower reading would read the term out of the Act by depriving it of independent meaning. Response: The Service does not agree that the MBTA is the only mechanism to achieve bird conservation. Comment: Multiple commenters opposed the proposed action because recent studies have demonstrated that North American bird populations are facing significant population declines. Comment: A letter from some members of the U.S. Senate stated that the stakes of the proposed rule are considerable, and like the legal opinion, it will have a significant detrimental impact on migratory birds. 4813 (1917) (statement of Sen. Reed). The commenters noted that through judicious enforcement and by working directly with industries to develop and implement best management practices, the MBTA has provided a key incentive for adopting common-sense practices that protect birds. In accordance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and the Department of the Interior's manual at 512 DM 2, we considered the possible effects of this rule on federally recognized Indian Tribes. A few commenters noted that their industry sectors will continue to work with Federal and State agencies and help them fulfill their mission to conserve, protect, and enhance wildlife and their habitat for the continuing benefit of all people. 55 Cong. 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. However, they also outlined mechanisms to protect habitat and prevent damage from pollution and other environmental degradation (domestically implemented by the Migratory Bird Conservation Act and other applicable Federal laws). As such, they reinforce[] the dictionary definition, and confirm[] that `take' does not refer to accidental activity or the unintended results of passive conduct. Brigham Oil & Gas, 840 F. Supp. NEPA compliance requires Federal entities to identify impacts to the environment affected by a proposal, including impacts to migratory birds and socioeconomic impacts if they are likely to occur. . FWS-HQ-MB-2018-0090. Rather, each requires a deliberate action specifically directed at achieving a goal. It is simply one tool in what must be a multifaceted approach. 2509 (2002), reprinted in 16 U.S.C.A. The statutory context of the MBTA would make little sense if it merely prohibited directed action such as hunting because its purpose extends beyond conserving game birds. Response: The Service appreciates the perspective of the entities that support this rulemaking. Only those businesses choosing to reduce best management practices will accrue benefits. Comment: Multiple commenters stated that the proposed rule is likely to facilitate a substantial increase in the number of migratory birds killed, in direct conflict with the amended treaty with Canada. The EIS compares the environmental effects of both alternatives. For example, colonial nesting birds are highly sensitive to disturbance; destruction of their nests during or near the nesting season could result in a significant level of take. If these species are known to occur in the area, before destroying a nest of this type we recommend consulting with an expert who can help determine whether adults, eggs, or chicks are present. . Response: This rulemaking is based on the Department's interpretation of ambiguous language in a statute the Secretary is charged with implementing and does not amend the language of the MBTA. Justice Gorsuch in Bostock was quite clear that legislative intent is only irrelevant if the language of the statute is plain, as he found the applicable language of the Civil Rights Act to be. We will not hold entities accountable for take that does not violate the MBTA. Response: The Service has complied with the procedural requirements of NEPA for developing an EIS by publishing a scoping notice and a draft EIS inviting public comment before developing a final EIS and record of decision. . The announcement was not considered in developing this final rule. The replacement timeline for netting is also variable because hurricanes, strong winds, and strong sun all have deleterious impacts on nets. We continue to provide technical advice when requested regarding application of the MBTA in specific situations. of strict liability for hazardous commercial activity . To a certain extent, some degree of short-term uncertainty is to be expected when a change in agency practice occurs. If the MBTA was originally understood to protect migratory bird habitats from incidental destruction, enactment of the Migratory Bird Conservation Act 11 years later would have been largely superfluous. In any event, the views of the 2003 Congress in a rider to an appropriation act that did not even explicitly amend any of the MBTA's language have little if any significance to interpreting the MBTA. Id. Response: The Service has fulfilled the commenter's request through the publication of a draft EIS, which analyzed a no action alternative and two action alternatives. For this reason, we cannot introduce a mental-state requirement such as negligence to the MBTA's misdemeanor provision. 2. Response: The intent of this rulemaking is not to harm States, but to interpret the MBTA in the manner Congress intended when it drafted and enacted the statute. We conducted the NEPA analysis at the appropriate time to analyze the environmental effects of this rulemaking to codify that interpretation. It is clear from the legislative history leading up to the statute's passage that Congress drafted language to address those threats. Yet what is legal in the Fifth and Eighth Circuits may become illegal as soon as an operator crosses State lines into the bordering Tenth Circuit or become a matter of uncertainty in the Ninth Circuit. Response: We agree with the commenter that this rulemaking will continue to authorize criminal enforcement of intentional take while codifying that the MBTA does not prohibit incidental take. Comment: Some commenters suggested that the interpretation of the MBTA set forth in the proposed rule is flawed and does not account for the mission of the Department and the Service. are not part of the published document itself. Response: This approach would be very similar to establishing a policy to decline enforcement except in cases of gross negligence. The Department provided 45-day comment periods on both the NEPA scoping process and the draft EIS and a separate 45-day comment period on the proposed rule. The proposed rule uses the commonly understood definition of incidental and does not purport to redefine that term in any way. We will continue to work with our domestic and international partners, the regulated community, and the public at large to uphold our commitment to ensure the long-term conservation of migratory birds under the migratory bird Conventions. [n]o regulations have been issued to create a permit scheme to authorize incidental take, so most potential violators have no formal mechanism to ensure that their actions comply with the law. 85 FR at 5922. Working with others to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. The commenters noted that the Executive Order defines take consistent with the Service's general definition applicable to all wildlife statutes in 50 CFR 10.12. These treaties established the Federal Government's trust responsibility to Federally Recognized Tribes. . Thus, the only legislative enactment concerning incidental activity under the MBTA is the 2003 appropriations bill that explicitly exempted military-readiness activities from liability under the MBTA for incidental takings. Table 3 shows the distribution of businesses by employment size and sales. Congress was simply acting to preempt application of a judicial decision that specifically and immediately restricted military-readiness activities. These cases demonstrate the potential for a convoluted patchwork of legal standards; all purporting to apply the same underlying law. Comment: Commenters claimed that the Service must examine the effect the proposed rule would have on certain ESA-listing decisions, such as a not-warranted determination or 4(d) rule, which may have been determined with the understanding that the MBTA incidental take protections would still apply. The word protection occurs in its first sentence. documents in the last year, 29 This table of contents is a navigational tool, processed from the , the government must prove proximate causation. Moon Lake, 45 F. Supp. 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. Regarding the comments from the Government of Canada, the Service identified the impacts to migratory birds to the extent it was able in the final EIS, based on the information available. See Mahler, 927 F. Supp. The Service proposes that kill and take exclude unintentional actions as they are listed among directed actions such as hunt or pursue. Yet this construction renders the list meaningless, working contrary to established norms of interpretationif kill were limited to hunt and pursue, then there would be no need to include hunt and pursue on the list. It is also reasonable to conclude that the MBTA's prohibition on killing is similarly limited to deliberate acts that result in bird deaths. is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat. 16 U.S.C. Courts have adopted different views on whether section 2 of the MBTA prohibits incidental take, and, if so, to what extent. Fish and Wildlife Service. The NEPA process informed our decision-making process culminating in this final rule. In October, the U.S. 2d at 1085. at 813 (kill may mean the more active to put to death; to slay or serve as the general term for depriving of life); id. Comment: One commenter noted that the recent Supreme Court ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), does not support this rulemaking. Response: The proposed rule did not provide a threshold for prohibiting incidental take because it proposed to codify the interpretation set forth in M-37050 that the Act does not prohibit incidental take in the first place. Geer v. Connecticut, 161 U.S. 519, 523 (1896) (quoting Digest, Book 41, Tit. Many of these commenters requested an extended comment period. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead. United States v. Santos, 553 U.S. 507, 514 (2008) (internal citations omitted). . This rule may reduce the incentive for affected parties to implement these guidelines. Response: This rulemaking has no effect on investigations into conduct directed at migratory birds or the MBTA's criminal felony and baiting provisions that require a specific mental state. This definition still requires law enforcement to prove intent, which can be just as difficult to prove, just as legally uncertain, and equally burdensome to law enforcement. That action is directed at birds but does not take them in the common law sense that take means to reduce wildlife to human physical control, and it could also not be fairly characterized as hunting, pursuing, or capturing them either. Further, it will discourage actors who fail to avoid, minimize, or mitigate for the impacts of their activities from gaming the system and taking advantage of the Service's limited prosecutorial resources. In fact, such partnerships will likely become increasingly important to promote conservation of migratory birds and lead to greater consistency in both conservation and regulation nationwide. Response: Per the National Environmental Policy Act (NEPA), the Service analyzed the impacts mentioned by the commenter within the draft Environmental Impact Statement (EIS) published June 5, 2020. ), we have determined the following: a. documents in the last year, by the International Trade Commission This approach would include creating a definition of extra-hazardous activities and enforcing incidental take when it results from gross negligence. the current document as it appeared on Public Inspection on Average number of pits per business is unknown. . In some sense, actions directed at migratory birds are deliberate in nature, but the concept of foreseeability is not relevant. Comment: The proposed rule ignores article IV of the amended Canada treaty that the United States is to seek means to prevent damage to such birds and their environments, including damage resulting from pollution. Under the new interpretation of the MBTA, pollution is no longer a considered factor as pollution is almost never a direct, purposeful act. 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. For example, the Service is working proactively with both the communication tower industry and with Federal agencies, cities, and other municipalities to address tower and glass collisions. It also fails the intent of the treaties. 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. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. Vultures are protected under the Migratory Bird Treaty Act, which prohibits the killing, possession, import, export, sale or purchase of any migratory bird or its parts. Compare Mexico Treaty Act, 49 Stat. Comment: Multiple commenters felt the manner in which this proposed rulemaking was announced on January 30, 2020, by the Service's Office of Public Affairs was improper and a violation of the APA (Pub. The Court held that when an agency rescinds a prior policy its reasoned analysis must consider the `alternative[s]' that are `within the ambit of the existing [policy].' We agree that strict liability applies to misdemeanor violations of the MBTA. The operative verbs (pursue, hunt, take, capture, kill) are all affirmative acts . Response: A wide array of statutory mandates provide protections to wildlife, including migratory birds. Federal and State Rules and Statutes Governing Osprey Nest Removal in Minnesota. Response: The Service's implementation of the Fish and Wildlife Conservation Act is not directly relevant to this rulemaking. The degree to which these small businesses may be impacted by the rule is variable and is dependent on location and choice. Response: The effects of this rule have been analyzed in the EIS accompanying this rulemaking. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. . Comment: Multiple commenters recommended the Service clarify how the Service will continue to collect project-level data on industrial impacts to birds. Comment: Multiple commenters claimed that because the new Solicitor's Opinion rests on but does not resolve the Circuit court split indicates that courts are not obligated to adhere to its interpretation. 04/17/2023, 211 For example, 13 States have oil pit covering requirements. We evaluated this regulation in accordance with the criteria of the National Environmental Policy Act (NEPA), the Department of the Interior regulations on Implementation of the National Environmental Policy Act (43 CFR 46.10-46.450), and the Department of the Interior Manual (516 DM 8). Likewise, during hearings of the House Foreign Affairs Committee, Congressman Miller, a vigorous fighter, who distinguished himself in the debate over the MBTA, Leaders in Recent Successful Fight for the Migratory Bird Treaty Act, BulletinThe American Game Protective Association, July 1918, at 5, put the MBTA squarely in the context of hunting: I want to assure you . (internal citations omitted)). Codification in the Code of Federal Regulations provides the maximum certainty and permanence possible absent new legislation, over which we have no control. 16 U.S.C. Thirteen States have regulations governing the treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. "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." 703(a). The commenters noted that the proposed rule change is extremely limited in scope as it fails to address the evolution of threats to migratory birds or to ensure the sustainability of healthy bird populations. like what a tree nesting species might build. Similarly, in Mahler v. U.S. Forest Serv., 927 F. Supp. The NRDC court countered that referencing different manners of taking birds does not give effect to the by any means and in any manner language, but instead clarifies the term hunt because the referenced activities are primarily different means of hunting. Only Congress can amend statutory language. The EIS examined the impacts of this rulemaking and specifically compared the environmental impacts of adopting each interpretation of the MBTA to inform the decisionmaker of the consequences of adopting either alternative. In one of the comments, they referenced that the proposed rule cites 500,000 to 1,000,000 deaths per year at oil pits as old and high, suggesting that new technological innovation and State regulations have caused a decrease in oil pit mortality. Therefore, the Supreme Court's holding in Bostock does not apply here. at 1581 (Many other statutes enacted in the intervening years also counsel against reading the MBTA to prohibit any and all migratory bird deaths resulting from logging activities in national forests. 703-712. That Congress was animated regarding potential restrictions on hunting and its impact on individual hunters is evident from even the statements relied upon as support for the conclusion that the statute reaches incidental take. 10, 45 Stat. establishing the XML-based Federal Register as an ACFR-sanctioned The Service has completed these consultations with all interested parties. We note that on August 11, 2020, a district court vacated M-37050 and held that the plain language of the MBTA prohibits incidental take. You will be directed to the following website in 5 seconds: We hope your visit was informative and enjoyable. Due to the biological and behavioral characteristics of some migratory bird species, destruction of their nests entails an elevated risk of violating the MBTA. During the period . Likewise, the Federal Government has sought to distinguish holdings in the habitat-destruction context in the Ninth Circuit. Regarding enforcement of Federal law, the Department and the Service are obligated to interpret and follow the law established by Congress. The Service drafted the proposed rule with sufficient flexibility to incorporate the alternatives analyzed in the draft EIS. Response: We agree with the commenter that interpreting the MBTA to prohibit incidental take could potentially lead to some of the cited absurd results. In making this change, the Senate Report noted that the amendment was not intended in any way to reflect upon the general application of strict liability under the MBTA.. Table 1 lists the industry sectors likely impacted by the rule. 1978); United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 4, 1972, 25 U.S.T. Learn more here. The text, history, and purpose of the MBTA demonstrate instead that it is a law limited in relevant part to actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs to human control by killing or capturing. However, the economic impact of the rule on small entities is likely not significant. 1202. The list of applicable migratory birds protected by the MBTA is currently codified in title 50 of the Code of Federal Regulations at 50 CFR 10.13. See Canada Convention, 39 Stat. Response: We have chosen to codify the interpretation set forth in Solicitor's Opinion M-37050 and interpret the scope of the MBTA to exclude incidental take. An expansive reading of the MBTA that includes an incidental-take prohibition would subject those who engage in these common, and necessary, activities to criminal liability. Similarly, in Mahler v. U.S. Forest Serv., 927 F. Supp adopted different views whether. The alternatives analyzed in the Code of Federal Regulations provides the maximum certainty and permanence possible absent legislation! 553 U.S. 507, 514 ( 2008 ) ( internal citations omitted ) of foreseeability is relevant. Of statutory mandates provide protections to wildlife, including migratory birds acts that result in bird deaths and Governing... For this reason, we can not introduce a mental-state requirement such as hunt or pursue nature, but concept... 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