migratory bird treaty act nest removalmigratory bird treaty act nest removal

This rule does not affect the prohibitions under the ESA, and thus species listed under that statute would continue to be covered by all the protections accorded listed species under the ESA. The U.S. Supreme Court has ruled that the interpretation of a statute that would lead to absurd results must be avoided in favor of other interpretations consistent with the legislative purpose.. The Service is committed to working with those that voluntarily seek to reduce their project-related impacts to migratory birds. The court in Moon Lake identified an important and inherent limiting feature of the MBTA's misdemeanor provision: To obtain a guilty verdict . An agency has no authority to remove statutory protections without congressional approval. The following text presents the substantive comments we received and responses to them. has no substantive legal effect. We do not base our current interpretation solely on those due process concerns; instead, they reinforce our current interpretation as the correct construction of section 2's ambiguous language. 12988, we determined that this rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Public comments submitted on the proposed rule and supplementary documents to the proposed rule, including the environmental impact statement and regulatory impact analysis, may be found at the Federal rulemaking portal http://www.regulations.gov in Docket No. The commenters noted that despite efforts to prevent incidental take, such take is not one-hundred-percent preventable and criminalizing incidental take does not advance conservation efforts. Trucking Ass'ns, 531 U.S. 457, 468 (2001). Closed wastewater systems typically used for reasons other than bird mitigation. The announcement of the proposed rule was primarily a notification to the public and the media summarizing the contents of the proposed rule and its availability for public comment, with the viewpoints of several stakeholders included. This confused order of events also hampers a fair public understanding of the agency's proposed action, alternatives, and likely impacts. Protection may entail maintaining a safe, . For broad statutes that may be applied to seemingly minor or absurd situations, [i]t is no answer to say that the statute would not be applied in such a case. Keyishian v. Bd. Additionally, Article V prohibits the taking of eggs or nests of certain protected species, except for scientific and propagating purposes under regulations issued by the parties, and Article VI prohibits transport, import, and export of protected species except for scientific or propagating purposes. 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). Learn more here. For example, consistent with a product's usage as authorized by the Environmental Protection Agency and based on its intended usage, a farmer could spread poisoned bait to kill birds depredating on her crops. The 45-day period for commenting on the proposed rule and NEPA scoping process, along with the subsequent 45-day comment period for the draft EIS, provided sufficient time for the public to address this rulemaking. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. In addition to the snowy egret and the sandhill crane, the wood duck was one of the threatened species that prompted the passage of the Migratory Bird Treaty Act of 1918, after a landmark Supreme Court case, Missouri v. Holland, that asserted the federal government's right to regulate hunting. No 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. We, the U.S. Table 5 shows the distribution of businesses by employment size and sales. The Service has conducted a cost-benefit analysis which can be viewed online at https://beta.regulations.gov/docket/FWS-HQ-MB-2018-0090/document and https://www.fws.gov/regulations/mbta/. Potential due process concerns are relevant when the language of a statute is ambiguous and assist in divining its proper meaning. One of the easiest ways that anyone can support bird habitat conservation is by buying duck stamps. Comment: Some commenters noted that the prosecution of individual citizens or companies for the incidental take of migratory birds does not benefit conservation efforts. Fish and Wildlife Service (hereafter Service). In other statements, various members of Congress expressed concern about sportsmen, people killing birds, shooting of game birds or destruction of insectivorous birds, and whether the purpose of the MBTA was to favor a steady supply of game animals for the upper classes. Moon Lake, 45 F. Supp. In reaching this result, the Court squarely rejected the argument that the Court's reading of the statute's expansive terms ignore[d] the legislature's purpose in enacting Title VII and that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. Id. Accordingly, the Service initiated government-to-government consultation via letters signed by Regional Directors and completed the consultations before issuing this final rule. Dom.). Comment: Multiple commenters noted that NEPA requires that decisions be analyzed in a public process before an agency irretrievably commits its resources. Response: The Service's implementation of the Fish and Wildlife Conservation Act is not directly relevant to this rulemaking. Fish and Wildlife Service, Land-Based Wind Energy Guidelines 6 (Mar. 1501 et seq. Response: The exchange of diplomatic notes the commenter references occurred in 2008 and did not amount to an agreement that prohibiting incidental take was required by the Convention. If you are using public inspection listings for legal research, you Ospreys are federally protected by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. The Service eliminated that alternative from further consideration because developing a general-permit system would be a complex process and better suited to analysis in a separate, subsequent proposal. It prohibits the "taking" any native birds; "taking" can mean killing a wild bird or possessing parts of a wild bird, including feathers, nests, or eggs. This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. Seabirds are specifically excluded from the definition of bycatch under the Magnuson-Stevens Fishery Conservation and Management Act, and therefore seabirds not listed under the Endangered Species Act may not be covered by any mitigation measures. See United States v. Moon Lake Electric Ass'n, 45 F. Supp. However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. Thus, it does not rely on the statutory language quoted by the commenter. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and have determined that this rule may have a substantial direct effect on federally recognized Indian Tribes. See 16 U.S.C. 04/17/2023, 211 This document has been published in the Federal Register. . Use the PDF linked in the document sidebar for the official electronic format. 2. $4,000 initial and $50 annual for side setting. That analysis includes comparing the effects of both interpretations. See Natural Res. 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 commenter's assertion would be better applied to the Service's prior exercise of enforcement discretion under the former interpretation, which left many regulated entities uncertain whether their conduct violated the MBTA and would be investigated by the Service. Since the Small Business Size Standard is less than 1,000 employees, we assume all businesses are small. Response: There are many other factors that influence an entity's decision to implement measures that may protect migratory birds from incidental take. Comment: One commenter asked whether any best management practices would be required under any circumstances and how the proposed rule affected both Executive Order 13186: Responsibilities of Federal Agencies to Protect Migratory Birds and the implementation of the Land-based Wind Energy Guidelines. However, the conclusion that the taking and killing of migratory birds is a strict-liability crime does not answer the separate question of what acts are criminalized under the statute. The proposal would essentially be adding language to the MBTA given our interpretation that it does not prohibit incidental take. It is also noteworthy that those losses occurred despite the Department's prior interpretation of the MBTA as prohibiting incidental take. "In reference to your request for documentation for the removal of an active Osprey nest from the light pole at the soccer field, please be advised that none exist. See Mahler, 927 F. Supp. When an intentional take permit is issued, conditions of that permit request any information on incidental mortalities that are discovered. 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. Otherwise-lawful economic activity should not be functionally dependent upon the ad hoc exercise of enforcement discretion. For the selected industries, we do not provide further analysis because minimal effects are expected on small businesses relative to an environmental baseline based on current regulations and voluntary conservation measures, due to the fact that mitigation costs are small relative to the cost of projects (see Table 7). . "The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations," said Secretary Deb Haaland. 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. We will continue to implement these programs consistent with our treaty obligations. Response: The operative language originally enacted in section 2 of the MBTA has not substantively changed since 1936. See, e.g., United States v. Shaver, 214 F. 154, 160 (E.D. 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 EIS notes that it may result in a measurable increase, but we do not expect it to be substantial. Just over 20 years earlier, the Supreme Court in Geer had ruled that the States exercised the power of ownership over wild game in trust, implicitly precluding Federal regulation. at 1081 (quoting 56 Cong. We decline to adopt this proposal for the same reasons we rejected application of a gross-negligence standard. of the issuing agency. was enacted in 1918 to help fulfill the United States' obligations under the 1916 Convention between the United States and Great Britain for the protection of Migratory Birds. 39 Stat. The number of States and the policy details are unknown. 703-712) and state protected by Chapter 97A of the Minnesota Statutes. The commenters called for more protections and see the proposed rule as weakening actions for the conservation of migratory birds. developer tools pages. One alternative in the draft EIS covers the expected effects of reverting to the Department's prior interpretation of the statute. 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. 703-704. Interagency review limited to Federal agencies occurred prior to issuance of the proposed rule under procedures required by Executive Order Start Printed Page 114512866 and implemented by the Office of Management and Budget. Industry will likely continue to install flashing obstruction lighting to save energy costs and to comply with recent Federal Aviation Administration Lighting Circular and Federal Communication Commission regulations. 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. The 1936 amendment modified the language to clarify its meaning and application, but there is no indication those changes were intended Start Printed Page 1143to broaden the scope of the statute beyond actions directed at migratory birds. 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). Comment: Multiple Tribes stated that this proposed action violates multiple Tribal-specific treaties, dating back to the mid-1800s. Thus, the Service scrutinized alternatives to the preferred action of codifying our interpretation that the MBTA does not prohibit incidental take. The remaining States represent approximately 32 percent of businesses in the crude petroleum and natural gas extraction industry. The mission of the Migratory Bird Permit Program is to promote long-term conservation of migratory birds and their habitats and encourage joint stewardship with others. The 1986 amendment and corresponding legislative history reveal only an intention to close a loophole that might prevent felony prosecutions for commercial trafficking in migratory birds and their parts. Therefore, the Service concludes that the scope of the MBTA does not include incidental take. for Biological Diversity v. Pirie, 191 F. Supp. One Member of Congress even offered a statement that explains why the statute is not redundant in its use of the various terms to explain what activities are regulated: [T]hey cannot hunt ducks in Indiana in the fall, because they cannot kill them. Additional States may create new regulations to clarify that they have jurisdiction to regulate or otherwise oversee incidental take of migratory birds. Any statements made by the United States in prior international meetings regarding whether the MBTA prohibits incidental take would have been consistent with the Department's interpretation of the MBTA at that time, but we have since changed our position as reflected by this rulemaking. The vast majority of entities in these sectors are small entities, based on the U.S. Small Business Administration (SBA) small business size standards. However, the Service continues to work with the bird conservation community to identify, support, and implement bird-monitoring programs. To be sure, Congress may draft statutory language to include potential future concerns not readily predicted at the time of enactment, but there is no indication that Congress intended the language of section 2 to encompass accidental or incidental deaths of migratory birds. The limitation of State protections to projects within State borders, coupled with the absence of the Service providing necessary leadership and coordination would severely hinder migratory bird management and recovery efforts nationwide. FWS-HQ-MB-2018-0090. . This environmental review should focus on the biological impacts and benefits to birds of the proposed rule and any authorization program that the Service is considering. This also includes the . Moreover, M-37050 is consistent with the Fifth Circuit appellate court decision in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. on Foreign Affairs, 64th Cong. Many species are protected under The Migratory Bird Treaty Act, which "makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under . Id. Comment: As a policy matter, the Service has not justified its departure from its prior interpretation of the Act, which was effective in protecting migratory birds without undue regulatory burden. Comment: One commenter recommended imposing stricter regulations along main migratory routes where high concentrations of MBTA species are biologically vulnerable (including stopover areas along migration routes, and core breeding/wintering areas), especially for threatened or endangered species or Species of Conservation Concern. Fish and Wildlife Service. of Regents, 385 U.S. 589, 599 (1967). The majority of these birds are federally protected under the Migratory Bird Treaty Act, which protects the birds, their nests, eggs, and feathers. Fish and Wildlife Service (Service) is the Federal agency delegated with the primary responsibility for managing migratory birds. The Service's selection of this alternative and the basis for that selection are provided in the Record of Decision signed by the Director of the U.S. Comment: Multiple commenters noted issues with how the proposed rule and associated NEPA document define a Federal action. The commenters noted that fundamental to this rulemaking effort is to identify properly the major Federal action. Thus, there appears to be no explicit basis in the language or the development of the MBTA for concluding that it was intended to be applied to any and all human activity that causes even unintentional deaths of migratory birds. Under very limited circumstances, the Service may issue permits to take active nests. 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. Owing to the diversity in operations of the various industries affected by this rule, USFW shall develop industry specific guidelines for developing precautionary measures to prevent the taking or killing of migratory birds.. That approach would require congressional action. Information about this document as published in the Federal Register. As is apparent from the record in this case, the Forest Service must comply with a myriad of statutory and regulatory requirements to authorize even the very modest type of salvage logging operation of a few acres of dead and dying trees at issue in this case. You will be directed to the following website in 5 seconds: We hope your visit was informative and enjoyable. Based upon the Service's analysis of manmade threats to migratory birds and the Service's own enforcement history, common activities such as owning and operating a power line, wind farm, or drilling operation pose an inherent risk of incidental take. does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisionsit does not, one might say, hide elephants in mouseholes. Whitman v. Am. Specifically, an agency shall commence preparation of an [EIS] as close as possible to the time the agency is developing or is presented with a proposal. The DOI should suspend M-Opinion 37050 while the Service considers the environmental impacts as required by NEPA. legal research should verify their results against an official edition of Table 6 shows example costs of some of the mitigation measures. A primary reason for engaging in this rulemaking is to remove any uncertainty in application of the statute to alleviate precisely the concern voiced by this comment. 1202. 3110. The Department's assessment of natural resource injuries under the Natural Resource Damage Assessment Program includes any injury to migratory birds, which in many cases could otherwise be classified as incidental take. Comment: One commenter stated that in an international forum the United States agreed that the MBTA is a strict-liability statute covering incidental take. 3329; and Convention between the United States of American and the Union of 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. We conducted the NEPA analysis at the appropriate time to analyze the environmental effects of this rulemaking to codify that interpretation. 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 . is not required. The store employees had spotted birds flying around several areas, as well as a nest built right over the customer service desk. In the commenters' experience the expenses of taking measures to minimize incidental take are minor and even the fines are minor to small businesses. Response: The Service appreciates the perspective of the entities that support this rulemaking. About 135 species of birds breed around Portland. The Act establishes an infrastructure and provides a source of funding, a competitive grant program. E.O. That does not mean, however, that Congress intended for strict liability to apply to all forms of human activity, such as cutting a tree, mowing a hayfield, or flying a plane. ., which covers all stages of the process by which protected wildlife is reduced to man's dominion and made the object of profit, and, as such, is a term of art deeply embedded in the statutory and common law concerning wildlife that describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals). Sweet Home, 515 U.S. at 718 (Scalia, J., dissenting). Comment: Only a few years ago, the United States exchanged formal diplomatic notes with Canada reaffirming our countries' common interpretation that the treaty prohibited the incidental killing of birds. . Response: We respectfully disagree that the Service has not justified its current interpretation of the MBTA. Because E.O. . Comment: One commenter in support of the proposed rule noted that there are other statutes that protect birds, including NEPA; industry would still have to comply with some of these laws and thus birds would benefit. Dictionary definitions of the term take at the time of MBTA enactment were consistent with this historical use in the context of hunting and capturing wildlife. Thus, in combination with the already significant population declines of many species, the proposed rule will almost certainly result in the need to increase the number of bird species listed under the Endangered Species Act (ESA) and increase the risk of extinction. . Rather than strict liability, the MBTA would apply a negligence standard to hunters who used fields with loose grain. Comment: Several commenters suggested that the proposed rule paints a broad brush over incidental takes, treating all equally and absolving even grossly negligent behavior that can result in the large-scale death of birds. Without retaining the legal responsibility by individuals and/or companies under the existing MBTA, there would be far less money available for mitigation of preventable environmental damage. We will continue to work with any entity that seeks to reduce their impacts to migratory birds to achieve conservation outcomes. 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. We disagree with the commenter's conclusions and refer readers to our analysis in the preamble. However, this rulemaking is not expected to affect significantly those continuing declines. headings within the legal text of Federal Register documents. E.O. This final rule defines the scope of the MBTA to exclude incidental take, thus incidental take that occurs anywhere within the United States and its territories is not an enforceable violation. Nor do the owners of electrical lines `take' migratory birds who run into them. Following the Wind Energy Guidelines has become industry best practice and would likely continue. 3 with 16 U.S.C. In addition, even if such a conclusion is not legally compelled, the Service proposes to adopt it as a matter of policy. Contrary to the suggestion of the courts in Moon Lake and Apollo Energies that principles of proximate causation can be read into the statute to define and limit the scope of incidental take, the death of birds as a result of activities such as driving, flying, or maintaining buildings with large windows is a direct, reasonably anticipated, and probable consequence of those actions. Under the normal NEPA EIS process, Federal agencies would conduct scoping of an issue, develop multiple action alternatives, put those alternatives out for public notice and comment, and ultimately select an alternative to advance. In October, the U.S. offers a preview of documents scheduled to appear in the next day's However, other actions such as poisoning bait to control birds depredating on crops would kill birds outside the context of hunting. Fish & Wildlife Service Toggle navigation Utility (Top) navigation About Us Forward Back About Us Executive Order 13563 reaffirms the principles of E.O. .' Even though destruction of nest by itself is not prohibited under the MBTA, nest destruction that results in the unpermitted take ofmigratory birds, or their eggs, is illegal and fully prosecutable under the MBTA. 260; Convention between the Government 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, U.S.-Japan, Mar. In other words, there may be a measurable difference but we do not expect it to substantially affect the existing trajectory of the number of migratory birds killed. Comment: Multiple commenters noted that the effects of this rule on ESA-listed species must be seriously scrutinized in an EIS as well as in section 7 consultation under the ESA. 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. The Service must explain how the proposed rule meets and affects its own responsibilities and those of other Federal agencies under this Executive Order. It is important to note that the MBTA should not be relied upon by itself to reduce large-scale impacts on migratory bird populations, whether or not it is interpreted to prohibit incidental take. . 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. The environmental consequences of the underlying sweeping policy change, which occurred in M-Opinion 37050, have yet to be held up to the mandates of NEPA. Regarding enforcement of Federal law, the Department and the Service are obligated to interpret and follow the law established by Congress. edition of the Federal Register. at 1754. It is simply one tool in what must be a multifaceted approach. Similarly, in Mahler v. U.S. Forest Serv., 927 F. Supp. . 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. The commenter Start Printed Page 1150recommended including a clause to stop the implementation of this proposed rule if populations are negatively impacted by incidental take from anthropogenic sources. . Any ambiguity inherent in the statute's use of the terms take and kill is resolved by applying established rules of statutory construction. Some permits are available online and others are submitted via email applications to wildlifepermits@myfwc.com. . The proposed rule would largely make the statute inoperable, thus violating its congressional intent by removing its purpose. While the MBTA does contemplate the issuance of permits authorizing the taking of wildlife, it requires such permits to be issued by regulation. See 16 U.S.C. 55 Cong. 2d at 1080-81. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. The proposed rule contravenes the text and purpose of the MBTA and fails to align with the purpose of our migratory bird treaties and our international obligations. We note, however, that NEPA does not provide substantive environmental protections by itself. , as well as a nest built right over the customer Service desk presents! 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CITGO Petroleum Corp., 801 F.3d 477 ( 5th Cir required by.... Response: the Service considers the environmental effects of this rulemaking take active nests obtain a guilty.. Business size standard is less than 1,000 employees, we assume all businesses Small. Diversity v. Pirie, 191 F. Supp in an international forum the United v.. Wildlifepermits @ myfwc.com support, and implement bird-monitoring programs official edition of Table 6 shows example costs some. Decline to adopt this proposal for the conservation of migratory birds to achieve conservation outcomes to @! Wastewater systems typically used for reasons other than bird mitigation 718 ( Scalia, J., dissenting.... Rejected application of a gross-negligence standard, the Service initiated government-to-government consultation via signed... Regulations to clarify that they have jurisdiction to regulate or otherwise oversee take!, J., dissenting ) must be a multifaceted approach analyzed in a public process before agency... 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