Washington D.C. – Today, the U.S. Fish and Wildlife Service (Service) is proposing a rule that defines the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders.
This proposed rule clarifies that the scope of the MBTA only extends to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act.
“With five federal circuit courts of appeals divided on this question, it is important to bring regulatory certainty to the public by clarifying that the criminal scope of the MBTA only reaches to conduct intentionally injuring birds,” said Assistant Secretary for Fish and Wildlife and Parks Rob Wallace. “That said, we will continue to work collaboratively with states, cities, conservation groups, industries, trade associations and citizens to ensure that best practices are followed to minimize unintended harm to birds and their habitats.”
“The mission of the U.S. Fish and Wildlife Service is to conserve wildlife and habitats for the continuing benefit of the American people. Bird conservation is an integral part of that mission. We are taking action today to make sure our rules and regulations are clear,” said Aurelia Skipwith, Director of the U.S. Fish and Wildlife Service. “We look forward to an open and transparent process that will ensure ample opportunity for public input.”
This action codifies the 2017 Department of the Interior Solicitor’s OfficeOpinion M–37050, which analyzed the scope of the MBTA and determined the act only applies to the intentional take of migratory birds and that the take of birds resulting from an activity is not prohibited when the underlying purpose of that activity is not to take birds. The Endangered Species Act and the Bald and Golden Eagle Protection Act, as well as state laws and regulations, are not affected by the Solicitor’s Opinion M-37050 or the proposed regulation.
The proposed rule will change how the Service administers the MBTA, and the Service has determined an Environmental Impact Statement under the National Environmental Policy Act is the most efficient and comprehensive approach for considering the potential impacts of this action on the environment. This is the first step in an open and transparent public process that the Service will continue to manage throughout the development of the rulemaking process. The public is encouraged to provide input to help ensure that these changes are clear, effective and advance the goal of migratory bird conservation.
When this Notice of Intent publishes in the Federal Register, it will begin a 45-day scoping process during which we solicit public input to help define the range of issues and possible alternatives to be addressed in the Environmental Impact Statement. The public scoping period will take place from February 3, 2020 - March 19, 2020.
The proposed rule will publish in the Federal Register on February 3, 2020, beginning a 45-day public comment period and will include details on how to submit comments. Written comments and information must be received on or before March 19, 2020, by one of the following methods:
- Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-HQ-MB-2018-0090.
- U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-HQ-MB-2018-0090; U.S. Fish and Wildlife Service; MS: JAO/1N; 5275 Leesburg Pike; Falls Church, VA 22041–3803.
We will not accept email or faxes. We will post all comments on http://www.regulations.gov, including any personal information you provide.
Interims copies of the proposed rule and notice of intent are now available.
More information related to this proposed rule, scoping and other associated materials, can be found online at: https://www.fws.gov/regulations/mbta/.
The U.S. Fish and Wildlife Service works with others to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. For more information, visit www.fws.gov, or connect with us through any of these social media channels: Facebook, Twitter, YouTube and Flickr.
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.”
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.”
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.”
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.”
Buster Johnson, Supervisor, Mohave County, Arizona: “Over the years there has been much uncertainty regarding the application of the Migratory Bird Treaty Act, and whether innocent and accidental take of covered species is authorized by the Fish and Wildlife Service. The proposed rulemaking will bring clarity to the issue. In the Desert region of the Southwest there is considerable development and growing populations of birds that are covered by the Act. By differentiating between innocent and unintentional take that might occur, and a direct conscious action to take specific birds, we believe the new rule will provide clarity and certainty to those engaged in important infrastructure and economic development projects for rural communities. We are pleased the Department provided a substantial public comment period prior to adoption so that we, and our constituents, may fully evaluate the details of the proposal. We concur that incidental take should be recognized as something that can occur even with the best planned projects, and it should not be criminalized. We do not see the proposed regulation as having an adverse effect on overall populations of covered birds.”
Leo Blundo, Commissioner, Nye County, Nevada: “Americans are innocent until proven guilty. That is one of the constitutional bedrocks of America. Accidentally, or unintentionally is not willful and should not be a subjective application of law. This is a balanced approach to modernizing outdated regulations. I am thankful and supportive of the steps the Department of the Interior is diligently working towards to protect the fundamental rights of the American people. This is a testament to President Trump’s Administration and their accomplished goals of good governance of the federal government. I congratulate the successes of Secretary of the Interior Bernhardt, Assistant Secretary Wallace, Director Skipwith and the entire Administration.”
Thomas Thurman, Supervisor, Yavapai County, Arizona: “As a Yavapai County Supervisor for 15 years in a state with only 18% private land, the last thing we need is to lockup more land through red tape and selective government enforcement of an opinion that violated basic Due Process. There already exists plenty of withdrawn public land and water for the sustainability of endangered species and migratory birds. Rural communities depend on predictability and access. I applaud President Trump and Secretary Bernhardt for restoring commonsense to a process that has been badly broken for decades.”
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 proposed 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.”
Quin Shea, Vice President, Environment, Natural Resources, and Occupational Safety & Health, Edison Electric Institute: “EEI appreciates the process the U.S. Fish and Wildlife Service is undertaking to clarify what activities are prohibited under the Migratory Bird Treaty Act. Across the country, EEI’s member companies are investing more than $110 billion annually in smarter energy infrastructure. Having clear regulatory guidance enables us to site, permit, build, and operate the energy infrastructure we need to deliver the clean energy future that our customers want and expect. EEI's member companies will continue to focus on strategies that help to avoid, minimize, and mitigate the impacts that this critical infrastructure has on migratory birds and other wildlife. EEI looks forward to analyzing the details of today’s proposed rule and to working with the Department of the Interior, the U.S. Fish and Wildlife Service, and other stakeholders as the agency moves to finalize this key rulemaking.”
Erik G. Milito, President, National Ocean Industries Association: “The Migratory Bird Treaty Act is at the core of American conservation, and this proposal 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.”
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 proposed rule provides needed regulatory certainty for critical energy infrastructure projects that will bring newer, cleaner power to consumers. This proposed 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.”
Zippy Duvall, President, American Farm Bureau Federation: “The American Farm Bureau Federation is pleased to learn that the Department of the Interior is moving forward to provide clarity on the scope of the Migratory Bird Treaty Act. 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. We look forward to working with the Department on these important reforms.”
Joe Luppino-Esposito, Director of Rule of Law Initiatives, Due Process Institute: “The proposed rule reinvigorates a basic tenet of criminal law: an individual’s criminal intent, or mens rea. The way the Migratory Bird Treaty Act has been enforced has too often ignored this fundamental prerequisite of criminal law. Treating accidental harm to migratory birds as a violation of the treaty unfairly criminalizes unintentional conduct. Protecting the environment is an important function of the federal government, but its enforcement regime should only use criminal sanctions against individuals and institutions who are purposefully inflicting harm on migratory birds. The proposed change aligns with the rule of law and adds credibility to the Department's enforcement actions.”
Louis Finkel, Senior Vice President, Government Relations, National Rural Electric Cooperative Association: “Electric cooperatives have been hampered by legal uncertainty over compliance with the Migratory Bird Treaty Act, even though they are dedicated to reducing impacts of electrical equipment on migratory birds. We support the administration’s efforts to provide clarity and certainty on this issue as electric co-ops continue voluntary practices to preserve wildlife while enhancing reliability of the electric system.”
Dan Savickas, Regulatory Policy Manager, FreedomWorks Foundation: “FreedomWorks applauds this effort by the Fish and Wildlife Service to unwrap needless red tape from around landowners and businesses. The greatest abuses of our regulatory state are those that threaten to turn everyday Americans into criminals unintentionally. The proposed changes to the Migratory Bird Treaty Act are long overdue and will ensure the intent of the law is respected. This was meant to better our nation, not set legal traps for the American people. These changes bring us closer to that vision.”
Kaitlynn Glover, Executive Director, Public Lands Council: “We are glad to see Interior taking steps to ensure well-meaning ranchers are not penalized for unintended take of birds protected under the Migratory Bird Treaty Act. The Public Lands Council looks forward to continuing to work with Secretary Bernhardt and Director Skipwith to provide regulatory clarity.”
Dean Mon, Chairman, National Association of Home Builders: “NAHB commends the U.S. Fish and Wildlife Service for taking a common-sense approach on its Migratory Bird Treaty Act rule proposal. The proposal is designed specifically to prevent the intentional harming of birds. At the same time, it will provide regulatory relief and certainty to home builders and other landowners.”
Jason Hayes, Director of Environmental Policy, The Mackinac Center for Public Policy: “It is well past time to clarify and define the scope of the Migratory Bird Treaty Act. Doing so will help ensure balanced enforcement and protection of migratory bird species at the federal level, while still leaving states the freedom to protect their wildlife resources as they see fit.
It has been over two years since the Department of the Interior’s Office of the Solicitor recommended that the Migratory Bird Treaty Act should not be interpreted to include ‘incidental’ or ‘accidental’ take (M-37050). Although unlikely, people could technically be sentenced to six months in jail and a $15,000 fine for striking any of over 1,000 species of migratory birds with their car.
A far more likely example is any of the numerous cases where prosecutorial discretion has led to targeted prosecutions of certain companies, resulting in hundreds of thousands to millions of dollars in fines. But clarifying that the MBTA applies to deliberate actions like poaching helps ensure that otherwise lawful activities are not likely to end in substantial fines or jail sentences.
The Department should also be applauded for recognizing that this proposed regulation is likely to encounter opposition early on in the process. By welcoming public comment as part of an environmental impact statement under the National Environmental Policy Act, they are ensuring this rule is considered in a fair and transparent public process.”
Michele Stanley, Vice President, Government and Regulatory Affairs, National Stone, Sand & Gravel Association: “The National Stone, Sand & Gravel Association (NSSGA) applauds Secretary Bernhardt, Assistant Secretary Wallace, Director Skipwith and the entire Administration’s thoughtful work to modernize outdated regulations. This proposed rule is yet another example of the balanced approach this administration is taking to ensure our bedrock environmental and wildlife protection laws are doing the most good without inadvertently prohibiting aggregates producers ability to supply essential building materials. NSSGA members across the nation take a leading role in working with community partners and conservation stakeholders to ensure wildlife, including protected migratory birds, are provided the necessary habitat to thrive.”
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 proposed rule maintains protections for migratory birds while preventing abusive applications of law.”
Rich Nolan, President and CEO, National Mining Association: “Today’s proposed rule provides a necessary update to a statute that was enacted more than a century ago, at a time when the rampant hunting of migratory birds for food and feathers was decimating many bird populations. The protection of migratory birds is important, and the statute should be applied as intended: to protect against intentional killing of birds, not to criminalize a broad range of commercial activities causing a significant chilling effect on industry and commerce nationwide, including mining.”
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.”
Kathleen Sgamma, President, Western Energy Alliance: “Western Energy Alliance applauds the proposed 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. The proposed 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.”
Jake Tyner, Director and Associate Policy Counsel, U.S. Chamber of Commerce: “Today’s announcement from the Fish and Wildlife Service provides certainty and clarity for those businesses operating under the Migratory Bird Treaty Act (MBTA). The conservation of migratory birds is important to businesses operating across all industries, and it is improper to penalize those businesses that are operating in good faith to help facilitate sustainable migratory bird population. Many companies have already developed voluntary conservation practices, including avian protection plans, which are designed to avoid or minimize impacts to migratory birds that are incidental to such activities. We look forward to working with the Administration as this rule progresses.”
Tommie Martin, Supervisor, Gila County, Arizona: “Protecting migratory birds and their habitat is necessary to mitigate human impact on the natural system. A balanced approach to that protection is necessary for its successful implementation. Weaponizing wildlife protection is counterproductive, and harmful to both the folks being attacked and the wildlife intended to be protected over the long run. Our ranchers and farmers, more than anyone, understand nature’s balance. Unfortunately, well-intended government regulations fail to recognize that and their approaches do more harm than good. This proposed rule is a step in the right direction and I applaud Secretary Bernhardt’s leadership.”
Rick Manning, President, Americans for Limited Government: “It is unconscionable that ranchers and others have been subjected to potential criminal prosecution for unintended consequences of legal actions. Thank you to Secretary David Bernhardt for putting out this rule which institutionalizes common sense protections of basic due process rights.”
Shayne Madsen, Director of Political Law Center, Independence Institute: “The Independence Institute supports the Department Of 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 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.”
Dan Laursen, Wyoming State House Representative: “The clarification of the Migratory Bird Treaty Act has been needed for too long. I have heard of oil producers going into hiding worried they may be put in prison by the regulators. The broad interpretation of “take” by regulators has been taken far beyond the original intent of the Act. Farmers and the mineral industry have been in fear for too many years. It is great to hear our Administration working hard to rein in the abuse.”