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Regulatory Certainty: A Flight of Fancy <\/strong>for the Migratory Bird Treaty Act<\/strong><\/p>\n Garrett Kral*<\/p>\n <\/p>\n The MBTA\u2019s statutory provisions \u201chave been the subject of repeated litigation and diametrically opposed opinions of the Solicitors of the Department of the Interior.\u201d<\/em>[1]<\/a><\/p>\n <\/p>\n Introduction <\/strong><\/p>\n \u00a0The United States Department of the Interior\u2019s interpretation of the Migratory Bird Treaty Act (MBTA, or the Act)[2]<\/a> has varied during the Obama, Trump, and now Biden administrations.[3]<\/a> Central to this variance is a dispute over statutory interpretation; specifically, the definition of \u201cincidental take,\u201d i.e.,<\/em> unintentional migratory bird mortality, which can be a strict liability crime<\/em><\/strong>.[4]<\/a> This article provides a brief history of the MBTA and the important role it has played in migratory bird conservation.[5]<\/a> However, the focus of this article is on recent MBTA policy and judicial decisions and what these decisions could mean for the regulated community.[6]<\/a><\/p>\n But before we begin, it is important to consider the United States\u2019 successful conservation of migratory bird species.[7]<\/a> Industry, from oil pits to wind-based turbines, is not the leading cause of domestic migratory bird mortality.[8]<\/a> In fact, data from recent years show the top three causes of domestic migratory bird mortality are: (1) cats; (2) buildings; and (3) automobiles.[9]<\/a> Thus as we consider the topic of migratory bird conservation, it is important to contextualize the leading causes of migratory bird mortality.<\/p>\n A Brief History of the MBTA<\/strong><\/p>\n This article does not attempt to summarize the full depth and breadth of bird law,[10]<\/a> detailed treatment of which can be found elsewhere.[11]<\/a> What this section does provide is a quick overview of the Act\u2019s history. In 1913, the United States Senate adopted a resolution requesting that the President \u201cpropose to the Governments of other countries the negotiation of a convention for the protection and preservation of birds.\u201d[12]<\/a> Acting on this Senate resolution, the United States and Great Britain (signing on behalf of Canada) entered into the first treaty for the protection of migratory birds in 1916.[13]<\/a><\/p>\n To fulfill the United States\u2019 treaty obligations, in 1918, Congress enacted the MBTA.[14]<\/a> This treaty was the first of four entered into by the United States between 1916 and 1976 for the protection of migratory birds.[15]<\/a> Since 1976, the MBTA has taken a rather circuitous flight path through each branch of the federal government in this administrative law dispute.<\/p>\n The Current State of the Law<\/strong><\/p>\n \u00a0<\/strong>The MBTA Under the Last Two Presidential Administrations<\/strong><\/p>\n Because much of the disagreement over the MBTA\u2019s proper scope and purpose centers around the statutory interpretation of \u201cincidental take,\u201d it is important to define that term upfront. In plain English, incidental take is the harming or killing of migratory birds that results from\u2014but is not the purpose of\u2014otherwise lawful activity. Congress defines incidental take as \u201cit 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, [or] any part, nest, or egg of any such bird.\u201d[16]<\/a> Examples of lawful activity that can result in incidental take, and thus open oneself up to enforcement and prosecution include: (1) personal activity (e.g., <\/em>an unsuspecting landowner fells a tree with a migratory bird\u2019s nest in its branches); (2) industrial activity (e.g., <\/em>operation of an oil field waste pit that a migratory bird descends into); and (3) renewable energy activity (e.g., <\/em>a land-based wind turbine that a migratory bird flys into).[17]<\/a><\/p>\n While the MBTA\u2019s incidental take provision has been around since the 1970\u2019s, this article focuses on the Act\u2019s recent history.[18]<\/a> On January 10, 2017, the Department of the Interior (DOI) under the Obama administration issued a Solicitor\u2019s opinion stating the MBTA prohibits \u201cincidental take.\u201d[19]<\/a> A Solicitor\u2019s opinion is a policy memorandum from DOI\u2019s Solicitor, the Senate confirmed principle legal adviser to the Secretary of the Interior\u2014the Cabinet Secretary leading DOI\u2019s 70,000 employees across 2,400 locations. This Solicitor\u2019s opinion from the Obama administration concluded \u201cthe MBTA\u2019s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.\u201d[20]<\/a><\/p>\n Stated differently, under Section 707 of the MBTA the killing of a migratory bird can be a strict liability crime\u2014at least under Section 707(a)\u2019s misdemeanor provision where no mens rea<\/em> is required to be convicted of violating the Act.[21]<\/a> Individuals or companies who commit a Section 707(a) violation are \u201cdeemed guilty<\/em><\/strong> of a misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned not more than six months, or both.\u201d[22]<\/a><\/p>\n On the other hand the MBTA\u2019s felony provision, Section 707(b)(1)-(2), states that those who \u201cknowingly<\/em><\/strong>\u201d violate the Act \u201cshall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both.\u201d[23]<\/a> Fortunately, Section 707(b)\u2019s felony provision has a knowledge requirement, meaning that a violation of this part of the Act is not a strict liability crime.[24]<\/a> Even so, there are due process concerns with Sections 707(a)-(b) of the MBTA because they allow for criminal penalties. [25]<\/a>Nevertheless, DOI has recently stated that through prosecutorial discretion it may mitigate such concerns.[26]<\/a><\/p>\n Under the Trump administration, DOI did not agree with the prior Solicitor\u2019s interpretation of the MBTA. As such, less than a year after taking office, the Trump administration issued its own Solicitor\u2019s opinion that found the MBTA only criminalizes \u201cdirect and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human<\/p>\n control.\u201d[27]<\/a> The most notable example of such conduct is illegally hunting or poaching protected migratory bird species.[28]<\/a> This opinion remained the legal position of the United States for the duration of the prior administration and was supported by a final rule published by the United States Fish and Wildlife Service (FWS, or the Service) on January 7, 2021.[29]<\/a><\/p>\n The Solicitor\u2019s opinion for the Trump administration began with the text of the Act, citing to the ancient maxim a verbis legis non est recedendum<\/em> (do not depart from the words of the law).[30]<\/a> Here, the Solicitor turned to Section 703(a) of the MBTA which defines \u201cincidental take\u201d and \u00a0relied upon the cannon noscitur a sociis<\/em> (a word is known by its associates) to find that \u201cpursue,\u201d \u201chunt,\u201d and \u201ccapture,\u201d unambiguously require an affirmative and purposeful action.[31]<\/a> While the two remaining verbs, \u201ckill,\u201d and \u201ctake,\u201d may refer to either active or passive conduct. These tools of statutory interpretation, along with other legal analysis, led that Solicitor\u2019s opinion to conclude Section 703(a)\u2019s definition of incidental take is limited to affirmative actions that have as their stated purpose the taking or killing of migratory birds.[32]<\/a> This brings us to the current administration\u2019s approach to interpreting the MBTA, which is \u201cdiametrically opposed\u201d to that of the Trump administration, and which builds upon that of the Obama administration.[33]<\/a><\/p>\n The Current Administration\u2019s MBTA Approach <\/strong><\/p>\n \u00a0<\/strong>Policy Preferences <\/strong><\/p>\n On October 4, 2021, the Biden administration concurrently published three important documents: (1) the MBTA final rule; (2) the Advanced Notice of Proposed Rulemaking (ANPR); and (3) Director\u2019s Order 225.[34]<\/a> The publication of the MBTA final rule withdrew the Trump administration\u2019s MBTA final rule, while a recent district court ruling vacated the Solicitor\u2019s opinion from the prior administration.[35]<\/a> DOI, under the current administration, has not yet issued a Solicitor\u2019s opinion discussing \u201cincidental take,\u201d most likely because the position of DOI\u2019s Solicitor remained vacant for a majority of the first year of the current administration.[36]<\/a> However, based on a review of the prior two administration\u2019s actions\u2014and with the recent confirmation of DOI\u2019s newest Solicitor\u2014the current administration \u00a0has almost certainly begun drafting and is looking to publish a new Solicitor\u2019s opinion that returns to the position that incidental take is prohibited by the MBTA.[37]<\/a><\/p>\n The current administration\u2019s final rule does not propose replacement language for the prior administration\u2019s final rule.[38]<\/a> Instead, it removes the prior administration\u2019s regulatory text altogether, stating DOI will: \u201creturn to implementing the MBTA as prohibiting incidental take and applying enforcement discretion.\u201d The current administration\u2019s final rule went into effect on December 3, 2021.[39]<\/a><\/p>\n Also, the current administration\u2019s publication of the ANPR in the Federal Register opened a 60-day notice and comment period that expired on the final rule\u2019s effective date: December 3, 2021.[40]<\/a> Briefly, the ANPR discusses the option of a MBTA incidental take permitting program.[41]<\/a> This approach is similar to that initiated by the Obama administration in 2015,[42]<\/a> but disregarded by the Trump administration in 2017, when that Solicitor concluded the MBTA does not prohibit incidental take.[43]<\/a> As such, under the Trump administration\u2019s reading of the MBTA, because lawful actions resulting in the taking of migratory bird species are not subject to enforcement or prosecution, a permitting program would be superfluous.[44]<\/a> However, under the current administration\u2019s reading of the MBTA, a permitting program is perhaps necessary \u201cto provide both meaningful bird conservation and regulatory clarity.\u201d[45]<\/a><\/p>\n Also on October 4, 2021, the Service published Director\u2019s Order 225.[46]<\/a> This policy document comes from the Director of the FWS, a politically appointed position that remains vacant in the current administration; and thus, this order was almost certainly written by lower-level DOI staff.[47]<\/a> To protect against the inherent overbreadth of incidental take, Director\u2019s Order 225 allows for enforcement discretion.[48]<\/a> This approach was disfavored in the prior administration which cautioned that such discretion would likely result in the application of \u201carbitrary and discriminatory\u201d power.[49]<\/a> Nevertheless, Director\u2019s Order 225 states that \u201cthe Service will focus our enforcement efforts on specific types of activities that both foreseeably cause incidental take and where the proponent fails to implement known beneficial practices to avoid or minimize incidental take.\u201d[50]<\/a><\/p>\n Director\u2019s Order 225 describes \u201cbeneficial practices\u201d broadly, to include any action implemented in an effort to avoid and minimize the incidental taking of protected migratory birds.[51]<\/a> The FWS maintains a website that provides applicable best practices and conservation measures; for example, best practices for land-based wind energy facilities include following the Service\u2019s Land-Based Wind Energy Guidelines, which industry operators may find reduces exposure to MBTA enforcement and prosecution.[52]<\/a> In practice, however, it is likely too soon to tell how Director\u2019s Order 225 will be enforced. Thus, like the sword of Damocles, Interior\u2019s MBTA policy preferences loom over a host of otherwise lawful and productive activities.[53]<\/a><\/p>\n Judicial Decisions<\/strong> The MBTA has been litigated over in a bevy of federal district[54]<\/a> and appellate courts.[55]<\/a> Indeed, there is a circuit split on the issue of incidental take.[56]<\/a> Generally, the Second and Tenth Circuits have extended the MBTA to include incidental take; while the Fifth, Eighth, and Ninth Circuits have limited the MBTA to exclude incidental take.[57]<\/a> As such, there is no shortage of interesting MBTA case law to discuss. However, for brevity and clarity, this article focuses on the case law considered by DOI in its final rule.[58]<\/a><\/p>\n It may be said, however, that just as much scrutiny should be provided to the current administration\u2019s final rule because of the judicial decisions it fails to discuss.[59]<\/a> Namely, United States v. FMC Corporation <\/em>(not discussed); but also, United States v. Apollo Energies<\/em> (mentioned only once).[60]<\/a><\/p>\n In FMC Corp.<\/em>, the Second Circuit extended the MBTA to include incidental take, upholding the conviction of a corporation whose operations were found to have resulted in the incidental take of migratory birds after those birds were exposed to pesticide tainted water.[61]<\/a> While in Apollo Energies<\/em> the Tenth Circuit also extended the MBTA to include incidental take, finding that \u201c[a]s a matter of statutory construction, the \u2018take\u2019 provision of the Act does not contain a scienter requirement.\u201d[62]<\/a> Thus it would seem that from DOI\u2019s perspective FMC Corp. <\/em>and Apollo Energies<\/em> merit detailed discussion because they provide some legal justification for the position that the MBTA prohibits incidental take.<\/p>\n DOI\u2019s absence of discussion on FMC Corp.<\/em> is particularly interesting.[63]<\/a> Instead of discussing this case, DOI focuses its revocation of the prior administration\u2019s final rule on Natural Resources Defense Council v. United States Department of the Interior <\/em>(NRDC<\/em>).[64]<\/a> NRDC<\/em> is a published opinion from the Southern District of New York (SDNY), but this opinion cannot be said to supersede a published opinion from the Second Circuit\u2014which is binding on the SDNY.<\/p>\n Thus, it is curious indeed that the United States filed a notice of appeal in the Second Circuit on the NRDC <\/em>decision before the change in administration.[65]<\/a> However, after the change in administration, the United States filed a stipulation to dismiss its appeal of NRDC<\/em>.[66]<\/a> Perhaps because the current administration does not want to disturb the decision reached by the Second Circuit in FMC Corp.<\/em>, or the decision reached by the SDNY in NRDC<\/em>, the latter of which vacated the Solicitor\u2019s opinion from the prior administration, and both of which took the position that the MBTA prohibits incidental take. But if that is the current administration\u2019s reasoning, then why not cite to FMC Corp. <\/em>as the legal justification for its final rule? If the goal is regulatory certainty, why rely so heavily on a single published opinion from the SDNY while ignoring a published opinion from the Second Circuit (and mentioning a favorable decision from the Tenth Circuit only once)?<\/p>\n But this is what the final rule does. In the final rule, DOI states \u201cafter further review of the January 7 [Trump administration] rule and the CITGO<\/em> and NRDC<\/em> decisions, along with the language of the statue\u201d DOI has determined that the Trump administration\u2019s final rule and its Solicitor\u2019s opinion are not in \u201caccord[] with the text, purposes, and history of the MBTA.\u201d[67]<\/a> However, the current administration\u2019s final rule also states:<\/p>\n Reference to case law in general or legislative history can be interpreted to bolster either interpretation [of the MBTA] as demonstrated by the relevant analysis in the January 7 rule versus that of the initial Solicitor\u2019s Opinion, M\u201237041<\/em><\/strong> . . . . In any case, the Service certainly has discretion to revoke the January 7 rule given the legal infirmities raised by the NRDC<\/em> court and the [January 7] rule\u2019s reliance on the CITGO<\/em> decision.[68]<\/a><\/p><\/blockquote>\n As such, the core of the current administration\u2019s final rule compares, contrasts, and ultimately distinguishes NRDC<\/em> from the Fifth Circuit\u2019s decision in CITGO<\/em> and the prior administration\u2019s final rule.[69]<\/a> It is interesting that DOI puts so much weight into distinguishing CITGO <\/em>from NRDC<\/em> because these decisions rest in different circuits and at different levels of the federal judiciary. This tactic could make more sense if DOI provided deeper treatment to the current circuit split. However, to focus DOI\u2019s legal analysis on these two judicial decisions and a couple of non-binding policy documents is a puzzling tactic for administrative policymakers in 2022.<\/p>\n In its final rule, the current administration states CITGO<\/em> relies on \u201ctwo questionable premises.\u201d[70]<\/a> First, DOI states that the Fifth Circuit read the term \u201ckill\u201d out of the MBTA, \u201crender[ing] \u2018kill\u2019 superfluous to the other terms mentioned, thus violating the rule against surplusage.\u201d[71]<\/a> Second, DOI states the Fifth Circuit erred when applying noscitur a sociis<\/em> because \u201cupon closer inspection . . . the only terms that clearly and unambiguously refer to deliberate acts are \u2018hunt\u2019 and \u2018pursue.\u2019\u201d[72]<\/a> Thus, DOI states \u201c[t]he fact that most of the prohibited terms can be read to encompass actions that are not deliberate in nature is a strong indication that Congress did not intend those terms to narrowly apply only to direct actions.\u201d[73]<\/a> Ultimately, DOI concludes \u201c[a]fter closely examining the court\u2019s holding [in NRDC<\/em>], we are persuaded that it advances the better reading of the statute,\u201d one prohibiting incidental take.[74]<\/a><\/p>\n Lastly, it is curious and perhaps not coincidental that DOI fails to provide any meaningful treatment to the other circuit court decisions which cut against its current interpretation of the MBTA. Namely, Newton <\/em>(Eighth Circuit) and Seattle Audubon Society<\/em> (Ninth Circuit).[75]<\/a> In Newton<\/em>, the Eighth Circuit stated, \u201cwe agree with the Ninth Circuit [in Seattle Audubon Society<\/em>] that the ambiguous terms \u2018take\u2019 and \u2018kill\u2019 in 16 U.S.C. \u00a7 703 mean \u2018physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute\u2019s enactment in 1918.\u2019\u201d[76]<\/a> While in Seattle Audubon Society<\/em>, the Ninth Circuit found that \u201cthe[] cases do not suggest that habitat destruction, leading indirectly to bird deaths, amounts to the \u2018taking\u2019 of migratory birds within the meaning of the Migratory Bird Treaty Act. We are not free to give words a different meaning than that which Congress and the Agencies charged with implementing congressional directives have historically given them under the Migratory Bird Treaty Act.\u201d[77]<\/a> Thus, both Newton <\/em>and Seattle Audubon Society<\/em> (along with CITGO<\/em>) find that the MBTA does not prohibit incidental take while the current administration believes that it does, and in making this argument the current administration relies nearly in whole but at least in heavy part on a single district court decision: NRDC<\/em>.[78]<\/a><\/p>\n If the Supreme Court were to hear a case on the current circuit split over the MBTA\u2019s \u201cincidental take\u201d provision, the Court would almost certainly address not only Newton<\/em> and Seattle Audubon Society<\/em>, but each of the decisions discussed above.[79]<\/a> And while the MBTA has been to the Court once before, that flight was taken over 100 years ago.[80]<\/a> Thus, the current circuit split appears ripe for the Court\u2019s review.<\/p>\n Conclusion<\/strong><\/p>\n Regulatory uncertainty is disfavored. Indeed, the law (and the regulated community) demand certainty. Nevertheless, regulatory uncertainty surrounding the MBTA\u2019s implementation is likely\u2014and perhaps expected\u2014in the short term. Thus, with varying presidential administrations having \u201cdiametrically opposed\u201d[81]<\/a> interpretations of the MBTA, one is left wondering what the next administration will do.<\/p>\n <\/p>\n <\/a>* Garrett Kral is a former U.S. EPA official and political appointee for the Trump administration.<\/p>\n [1] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642 (Oct. 4, 2021) (to be codified at 50 C.F.R. 10).<\/p>\n [2]<\/a> 16 U.S.C. \u00a7\u00a7 703\u2013712.<\/p>\n [3]<\/a> See <\/em>discussion infra<\/em> Section 3.<\/p>\n [4]<\/a> 16 U.S.C. \u00a7 707(a). There are due process concerns with Section 707 of the MBTA because misdemeanor and felony penalties exist. DOI states it can mitigate these concerns with prosecutorial discretion. See infra<\/em>, Section 3(a); Martha Williams, U.S. Fish & Wildlife Serv., Dir.\u2019s Ord. No. 225, Incidental Take of Migratory Birds (2021) [hereinafter Director\u2019s Order 225].<\/p>\n [5]<\/a> See <\/em>discussion infra<\/em> Section 2.<\/p>\n [6]<\/a> See <\/em>discussion infra<\/em> Section 3(b)(i)\u2013(ii).<\/p>\n [7]<\/a> 50 C.F.R. \u00a7 10.13 (Listing the total number of species protected by the MBTA as 1,093. This list was last updated on April 16, 2020, when 75 migratory birds were added and 8 were removed.) (U.S. Fish & Wildlife Service, Managed Species, Migratory Bird Treaty Act Protected Species<\/em>, https:\/\/www.fws.gov\/birds\/management\/managed-species\/migratory-bird-treaty-act-protected-species.php).<\/p>\n [8]<\/a> See <\/em>U.S. Fish & Wildlife Service, Threats to Migratory Birds<\/em>, Migratory Bird Mortality Questions and Answers, https:\/\/www.fws.gov\/birds\/bird-enthusiasts\/threats-to-birds.php<\/a>, (Note the data set used by FWS is from 2017, but this webpage was last updated in December of 2021, after DOI published its final rule, advanced notice of proposed rulemaking, and Director\u2019s Order 225).<\/p>\n [9]<\/a> See id.<\/em> (Note there are a range of numbers experts use, and the federal government adopts, when setting MBTA policy. The data suggest average annual bird mortality is 3.3 billion, and the most common causes of bird mortality are: (1) cats (2.4 billion per annum); (2) buildings (599 million per annum); and (3) vehicles (214 million per annum). All industrial activity accounts for 709 million migratory bird deaths per annum.). Id.<\/em><\/p>\n [10]<\/a> The MBTA has historical roots, but also enjoys its place in popular culture. See, e.g.<\/em>, It\u2019s Always Sunny in Philadelphia<\/em>, The Gang Exploits the Mortgage Crisis<\/em> (FX Network television broadcast Sept. 17, 2009) (Dennis: \u201cI can absolutely keep a hummingbird as a pet . . . it\u2019s no different than having a parrot or a parakeet.\u201d Charlie: \u201cYou really can\u2019t, and I\u2019m not saying I agree with it. It\u2019s just that bird law in this country is not governed by reason.\u201d Dennis: \u201cThere\u2019s no such thing as \u2018bird law.\u201d\u2019 Charlie: \u201cYes, there is.\u201d).<\/p>\n [11]<\/a> See, e.g.<\/em>, Robert Percival & Garrett Kral, Global Trends in Protection of Migratory Birds<\/em>, 33 A.B.A. Nat. Res. & Env\u2019t Mag. 16 (2018) (exploring global trends in the protection of migratory birds); Brittany E. Barbee, To Kill a Migratory Bird: How Incidental Takes by Commercial Industry Activity Should be Regulated by a New Civil Penalty Regime, Not the Current MBTA<\/em>, 25 Buff. Env\u2019t. L. J. 91 (2018) (proposing the replacement of MBTA\u2019s criminal liability); Jessica Scott & Andrea Folds, From Friend to Foe: The Complex and Evolving Relationship of the Federal Government and the Migratory Birds it is Bound to Protect<\/em>, 49 Env\u2019t. L. 187 (2019) (advocating for the prosecution of incidental take).<\/p>\n [12]<\/a> Senate Journal, 63rd Cong. 1st Sess. 108 (Apr. 7, 1913).<\/p>\n [13]<\/a> Convention Between the United States and Great Britain for the Protection of Migratory Birds, U.K.-U.S., Aug. 16, 1916, 39 Stat. 1702 (ratified Dec. 7, 1916).<\/p>\n [14]<\/a> U.S. Fish & Wildlife Service, Laws & Legislation<\/em>, Migratory Bird Treaty Act, https:\/\/www.fws.gov\/birds\/policies-and-regulations\/laws-legislations\/migratory-bird-treaty-act.php.<\/p>\n [15]<\/a> See generally<\/em>, Convention Between the United States and Great Britain for the Protection of Migratory Birds, U.K.-U.S., Aug. 16, 1916, 39 Stat. 1702 (ratified Dec. 7, 1916); Convention Between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, Mex.-U.S., Feb. 7, 1936, 50 Stat. 1311 (ratified Mar. 15, 1937); Convention Between the Governments of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, Japan-U.S., Mar. 4, 1972, 25 U.S.T. 3329 (ratified Sep. 19, 1974); and <\/em>Convention Between the United States of America and the Union of the Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 U.S.T. 4647 (ratified Oct. 13, 1978). (Note that there have been amendments to at least some of these treaties; for example, the United States and Mexico treaty was amended in 1976, and the United States and Canada treaty was amended in 1995.). U.S. Fish & Wildlife Service, Laws & Legislation<\/em>, Migratory Bird Treaty Act, https:\/\/www.fws.gov\/birds\/policies-and-regulations\/laws-legislations\/migratory-bird-treaty-act.php.<\/p>\n [16]<\/a> 16 U.S.C. \u00a7 703(a).<\/p>\n [17]<\/a> See <\/em>U.S. Fish & Wildlife Service, Threats to Migratory Birds<\/em>, Migratory Bird Mortality Questions and Answers, https:\/\/www.fws.gov\/birds\/bird-enthusiasts\/threats-to-birds.php<\/a>; see also<\/em> United States Dep\u2019t Of The Interior, Solicitor\u2019s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 18 (Dec. 22, 2017).<\/p>\n [18]<\/a> Compare<\/em> Nat. Res. Def. Council v. U.S. Dep\u2019t of the Interior<\/em>, 478 F. Supp. 3d 469, 473 (S.D.N.Y. 2020) (stating \u201c[f]rom the early 1970s until 2017, Interior interpreted the MBTA to prohibit incidental takes and kills.\u201d); with<\/em>, Press Release, U.S. Fish and Wildlife Service, U.S. Fish and Wildlife Service Solicits Public Input on Proposed Rule and Environmental Impact Statement for Migratory Bird Treaty Act (Jan. 30, 2021) (concluding \u201c[w]ith 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\u201d) (on file with author).<\/p>\n [19]<\/a> United States Dep\u2019t Of The Interior, Solicitor\u2019s Opinion M-37041, Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 10, 2017).<\/p>\n [20]<\/a> Id.<\/em><\/p>\n [21]<\/a> 16 U.S.C. \u00a7 707(a) (\u201c[A]ny person, association, partnership, or corporation who shall violate any provisions of said conventions or of this subchapter, or who shall violate or fail to comply with any regulation made pursuant to this subchapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned not more than six months, or both.\u201d).<\/p>\n [22]<\/a> 16 U.S.C. \u00a7707(a).<\/p>\n [23]<\/a> 16 U.S.C. \u00a7\u00a7 707(b)(1)-(2).<\/p>\n [24]<\/a> 16 U.S.C. \u00a7 707(b)(2) (\u201cWhoever, in violation of this subchapter, shall knowingly . . . sell, offer for sale, barter or offer to barter any migratory bird shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both.\u201d).<\/p>\n [25]<\/a> See <\/em>Director\u2019s Order 225, supra<\/em> note 4, at 2.<\/p>\n [26]<\/a> See<\/em> Id<\/em>.<\/p>\n [27]<\/a> United States Dep\u2019t Of The Interior, Solicitor\u2019s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 41 (Dec. 22, 2017).<\/p>\n [28]<\/a> Id.<\/em><\/p>\n [29]<\/a> See<\/em> 50 C.F.R. \u00a7 10.14 (2021).<\/p>\n [30]<\/a> United States Dep\u2019t Of The Interior, Solicitor\u2019s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 18\u201319 (Dec. 22, 2017).<\/p>\n [31]<\/a> Id.<\/em> at 19.<\/p>\n [32]<\/a> Id.<\/em><\/p>\n
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