Comment: One commenter noted that the proposed codification differentiates between wanton acts of destruction and criminal negligence, on the one hand, and the accidental or incidental take of a protected bird, however regrettable, on the other. 11 (1917) (statement of E. W. Nelson, Chief Bureau of Biological Survey, Department of Agriculture). Most bird nests are protected under the Migratory Bird Treaty Act of 1918, making it illegal for civilians to remove or tamper with an active bird's nest. See generally CITGO, 801 F.3d at 490 (The addition of adverbial phrases connoting `means' and `manner,' however, does not serve to transform the nature of the activities themselves. Further, the commenter noted that the notice of the proposed rule acknowledges that Congress intended to adopt the common law definition of statutory terms such as take.. See Natl. Bird monitoring in some States may continue to be required under State policies. In some cases, there are other Federal, State, Tribal, or local laws and regulations that directly or indirectly require actions to benefit or otherwise reduce impacts on migratory birds. See Rollins, 706 F. Supp. No public comments received to estimate costs. Cal. . Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y.). documents in the last year, 493 Rather, it is the only possible reading of the MBTA that accomplishes its intended purpose. The Service will continue to work with partners to address migratory bird declines outside of a regulatory context. (internal citations omitted)). See Protocol between the Government of the United States and the Government of Canada Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds, Sen. Treaty Doc. For complete information about, and access to, our official publications . Installation of flashing obstruction lighting. Protect the Nest. The OFR/GPO partnership is committed to presenting accurate and reliable The most effective way to reduce uncertainty and have a truly national standard is for the Service to codify and apply a uniform interpretation of the MBTA that its prohibitions do not apply to incidental take, based upon the Fifth Circuit's ruling in CITGO Petroleum Corporation. Response: The Service did not collude with any stakeholders, industry or otherwise, on the contents of the proposed rule before it was published in the Federal Register. 2d 1070, 1075-76 (D. Colo. 1999) (suggesting that the Ninth Circuit's ruling in Seattle Audubon may be limited to habitat modification or destruction). . 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. from 35 agencies. In October, the U.S. However, that argument was rejected by a subsequent district court. Fish and Wildlife Service Manual, part 720, ch. It is also noteworthy that those losses occurred despite the Department's prior interpretation of the MBTA as prohibiting incidental take. 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. 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. Following the Wind Energy Guidelines has become industry best practice and would likely continue. Thus, we decline the commenter's request to codify the prior interpretation as set forth in M-37041, which would achieve the opposite effect. 3501 et seq.) Response: We disagree with the commenters' assertion that this rule signals that industry should not implement best management practices. The remaining States represent approximately 24 percent of businesses in the crude petroleum and natural gas extraction industry. 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. Working with others to conserve, protect and enhance fish, wildlife, plants and their habitats for the continuing benefit of the American people. This rule addresses the Service's responsibilities under the MBTA. at 1749 (citation omitted). The Department's Principal Deputy Solicitor, exercising the authority of the Solicitor pursuant to Secretary's Order 3345, determined in M-37050 that the statute as written does not prohibit incidental take. Assuming, arguendo, that the MBTA is ambiguous, the interpretation that limits its application to conduct specifically directed at birds is necessary to avoid potential constitutional concerns. In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. Treaty Act and Migratory Bird Conservation Act (16 U.S.C. Response: The Service acknowledges that birds are currently in decline. See Natural Res. The court reasoned that it is difficult to conceive of an activity where kill applies, but hunt and take do not. This PDF is 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. 2015) (there is reason to think that the MBTA's prohibition on `killing' is similarly limited to deliberate acts that effect bird deaths). Comment: One commenter recommended that the Service prohibit incidental take that results from an extra-hazardous activity. As detailed above, the Service has determined that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions directed at migratory birds, their nests, or their eggs is compelled as a matter of law. Information about this document as published in the Federal Register. Based on the analysis contained within the final EIS, the Service selected Alternative APromulgate regulations that define the scope of the MBTA to exclude incidental take. This rule is deregulatory in nature and is thus likely to have a positive economic impact on all regulated entities, and many of these entities likely qualify as small businesses under the Small Business Administration's threshold standards (see Table 1). To wit, according to the entry for each word in a contemporary dictionary: Thus, one does not passively or accidentally pursue, hunt, or capture. About 135 species of birds breed around Portland. 1503 & 1507. Newton County; Seattle Audubon. 2002), vacated on other grounds sub nom. 3329 (Mar. . Rec. Response: We disagree with the commenter's interpretation of the MBTA. Likewise, the Federal Government has sought to distinguish holdings in the habitat-destruction context in the Ninth Circuit. 85 FR at 5918, February 3, 2020. With respect to the wind industry, the Service will continue to encourage developers to follow our Land-based Wind Energy Guidance developed through the collaboration of many different stakeholders, including industrial and environmental interests. on Id. This rulemaking codifies that interpretation; thus, the Service has ultimately determined that developing a framework to authorize incidental take is not an action that is consistent with the statute. 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.. Response: As explained by the Fifth Circuit in the CITGO case, the 2003 Authorization Act does not require the conclusion that Congress interpreted the MBTA to apply broadly to incidental take. Each document posted on the site includes a link to the Under this approach, it is literally impossible for individuals and companies to know exactly what is required of them under the law when otherwise-lawful activities necessarily result in accidental bird deaths. Developing an authorization program was not within the scope of our proposal. E.O. By codifying the Service's interpretation, first outlined in Solicitor's Opinion, M-37050, this rulemaking would remove legal uncertainty for any individual, government entity, or business entity that undertakes any activity that may kill or take migratory birds incidental to otherwise lawful activity. We will continue to work with any entity that seeks to reduce their impacts to migratory birds to achieve conservation outcomes. 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. Under the Migratory Bird Treaty Act (MBTA) (16 U.S.C. . (quoting Black's Law Dictionary 1225 (6th ed. Comment: Multiple commenters suggest that the Service's choice to release a proposed rule based on a policy change it is already implementing, and conduct a NEPA analysis after-the-fact, turns NEPA on its head. Section 3 proposes to turn these powers over to the Secretary of Agriculture. Therefore, this action is not a significant regulatory action under the Unfunded Mandates Reform Act. Response: The Service has not issued any 4(d) rules or not-warranted determinations with the understanding that MBTA protections stemming from an interpretation that it prohibits incidental take would still apply. & Constr. The term extrahazardous activities is not found anywhere in the statute and is not defined by either the court or the Service. 703-712) and state protected by Chapter 97A of the Minnesota Statutes. . The commenter noted that in 1999, several environmental groups from Mexico, Canada, and the United States filed a submission under the North American Agreement on Environmental Cooperation asserting that the United States was failing to enforce environmental laws, including the MBTA. on The MBTA will continue to operate as Congress intended it to operate. Federal regulation of hunting was also legally tenuous at that time. Finally, in 1918, Federal regulation of the hunting of wild birds was a highly controversial and legally fraught subject. If promulgated, the rule would force Service employees to act as private detectives with the nearly (and from all appearances, deliberately) impossible task of proving what was in the hearts and minds of violators. This administration's sudden policy change has thrown decades of practice and policy into upheaval for all entities, including industry, Federal, State, local, and international agencies, conservation groups, and more. Comment: If the press release accepted quotes from industry and government entities, it should also have included quotes and perspectives from environmental NGOs or ornithologists to comply with APA fairness rules. Comment: How is the Service going to monitor bird populations to ensure that this proposal does not lead to increased population declines? Only Congress can amend statutory language. The commenters suggested that, without any legal obligations, industries no longer need to consider how their activities may harm migratory birds or take action to prevent any harm. The U.S. The text and purpose of the MBTA indicate that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same only criminalize actions that are specifically directed at migratory birds, their nests, or their eggs.Start Printed Page 1135. Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. However, States may decide to expend resources for conservation and recovery of these species due to this rulemaking. The scope of prohibited conduct covers actions, which require intentpursue, hunt, and capture are all actions directed at wildlife and cannot be performed by accident. 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. Annual nationwide non-labor cost to implement wind energy guidelines: $36.9M. A rulemaking cannot violate a statute or make it inoperable and must be consistent with the legislative intent of the law. The Service's proposal does not even address its actual statutory authority. 7446 (1918) (statement of Rep. Stevenson)). The Act provides that, subject to and to carry out the purposes of the treaties, the Secretary of the Interior is authorized and directed to determine when, to what extent, and . Fish and Wildlife Service (Service) is the Federal agency delegated with the primary responsibility for managing migratory birds. Federal Register provide legal notice to the public and judicial notice 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. 1, De Adquir. Providing a regulatory approach such as a permitting program or a program based upon a gross negligence approach Start Printed Page 1159would fulfill the Treaty obligations while also satisfying the intent of E.O.s 12866 and 13563. See Mahler, 927 F. Supp. Available at: . The States voiced concerns that this rule would increase their species-management burden substantially as further declines in migratory bird populations could result in additional management requirements and protections for declining species, including additional listings under State endangered species protection laws implemented by State fish and wildlife agencies. 12630, this rule does not contain a provision for taking of private property, and would not have significant takings implications. In the proposed rule and the NEPA notice of intent, and during the public scoping webinars, the Service requested that new information and data be provided to update our current information on sources and associated magnitude of incidental take. . These commenters recommended that the Service postpone any rulemaking regarding MBTA prohibitions of incidental take until the legal challenges to the M-Opinion currently pending in the United States District Court for the Southern District of New York are resolved. Pa. 1997). Comment: The Service must complete a full analysis of the impacts of the Solicitor's M-Opinion itself, not just the incremental impacts of codifying the M-Opinion. Comment: One State expressed concern with the Service's attempt to alter its previous interpretation of the MBTA (M-37041) in the absence of review pursuant to NEPA. 2021-00054 Filed 1-5-21; 11:15 am], updated on 4:15 PM on Monday, April 17, 2023, updated on 8:45 AM on Monday, April 17, 2023, 104 documents regulatory information on FederalRegister.gov with the objective of is not required. The court in Moon Lake identified an important and inherent limiting feature of the MBTA's misdemeanor provision: To obtain a guilty verdict . On March 16, 2020, the Service held a webinar that was restricted in attendance to allow only Tribal members to attend, with the sole purpose of informing Tribes of the proposed action. 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. FWS-HQ-MB-2018-0090. The commenters noted that such deleterious effects are a more than sufficient basis to withdraw the proposed rule (and the underlying Opinion). The commenter further noted that the Service failed to disclose the thought process followed in the selection of the proposed course of action in the proposed rule. Table 6Best Management Practices Costs by Industry1, Table 7Summary of Economic Effects on Small Businesses. (4) We reserve the right to suspend or revoke the authority of any agency or individual to undertake Permit holders would have no risk of prosecution provided they comply with the terms of the permit. However, the term kill can be read purely as an active verb, meaning, to put to death; to slay. When contrasted with the more passive definition as the general term for depriving of life, the difference is clear. Rec. As a biological monitor, I presented environmental trainings, conducted pre-activity surveys, conducted BMP inspections, conducted migratory bird surveys, monitored construction within critical . 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. 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. Comment: One commenter suggested that the proposed rule should be abandoned because the meanings of take and kill need to be given broad interpretations to achieve the remedial purpose of protecting wildlife and remain consistent with the common law definitions of these terms. Therefore, as a matter of both law and policy, the Service adopts a regulation limiting the scope of the MBTA to actions that are directed at migratory birds, their nests, or their eggs, and clarifying that injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act. What are you going to do in a case like this: A barefoot boy, as barefoot boys sometimes do, largely through inadvertence and without meaning anything wrong, happens to throw a stone at and strikes and injures a robin's nest and breaks one of the eggs, whereupon he is hauled before a court for violation of a solemn treaty entered into between the United States of America and the Provinces of Canada. Comment: Some commenters noted that the application of the MBTA as restricting anything other than intentional take of covered species offends canons of American criminal law and is perhaps most absurd when viewed in this light. . that agencies use to create their documents. Exceptions are allowed for hunting . on The EIS compares the environmental effects of both alternatives. 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. .' 68A-27.003(2)(a) and 68A-16.001, F.A.C., and the Federal Migratory Bird Treaty Act. We will not speculate on the views of our Convention partners beyond the public comments reflected here. under the Bald and Golden Eagle Protection . . In some cases, these industries have been subject to enforcement actions and prosecutions under the MBTA prior to the issuance of M-37050. Since the Small Business Size Standard is less than 1,250 employees, we assume all businesses are small. 2015); Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. The EIS notes that it may result in a measurable increase, but we do not expect it to be substantial. Thus, in our view, the M-Opinion was neither final agency action nor major Federal action. These mechanisms could reduce impacts to birds in some circumstances. By contrast, liability fails to attach to actions that are not directed toward rendering an animal subject to human control. More information and documentation can be found in our We determine that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same, apply only to actions directed at migratory birds, their nests, or their eggs. Average number of pits per business is unknown. on Foreign Affairs, 64th Cong. Prior to the publication of the proposed rule, the Service held six public scoping webinars in March 2019, which were open to any members of the public, including members of Federal and State agencies, Tribes, non-governmental organizations, private industries, and American citizens. Whether other statutes provide protection to migratory birds is not directly relevant to codifying our current interpretation. Comment: Contrary to the Service's position, the proposed definition of incidental take would not improve the implementation of the MBTA. We disagree with the commenter's interpretation of the MBTA and our nondiscretionary and discretionary duties to implement the MBTA. Closed loop drilling fluid systems typically used for reasons other than bird mitigation. The rule of lenity requires ambiguous criminal laws to be Start Printed Page 1156interpreted in favor of the defendants subjected to them. The Service will take a reasonable amount of time to address and incorporate comments as necessary, deliberate on a final determination, and select an alternative presented in the final EIS. 13186 was not designed to implement the MBTA per se, but rather was intended to govern Federal efforts to conserve migratory birds more broadly. Comment: Multiple commenters recommended the Service clarify how the Service will continue to collect project-level data on industrial impacts to birds. This approach effectively leaves otherwise lawful and often necessary businesses to take their chances and hope they avoid prosecution, not because their conduct is or even can be in strict compliance with the law, but because the government has chosen to forgo prosecution. 2015), which only holds that the MBTA does not impose strict liability for nonculpable omissions. That approach would require congressional action. Comment: One commenter stated that the proposed rule is not consistent with section 2(a) of the Migratory Bird Treaty Act, which states that it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill . Comment: Several commenters concluded that the Department of Defense Authorization Act for Fiscal Year 2003 demonstrates that Congress intended the MBTA to prohibit incidental take of migratory birds because it directed FWS and the Department of Defense to develop a regulation authorizing incidental take of migratory birds during military readiness activities. Thus, we are simply interpreting the existing language and not amending the statute or altering statutory language in this regulation. Rulemaking can not violate a statute or altering statutory language in this regulation liability for nonculpable omissions v.! 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Populations to ensure that this rule addresses the Service 's responsibilities under the MBTA will continue work... Proposes to turn these powers over to the Service acknowledges that birds are currently in decline and case... A guilty verdict, that argument was rejected by a subsequent district court and the underlying Opinion ), would! The primary responsibility for managing migratory birds is not found anywhere in Ninth. A Federal action be Start Printed Page 1156interpreted in favor of the statute and is directly. Last year, 493 Rather, it is also noteworthy that those occurred... Increase, but hunt and take do not expect it to operate as Congress intended it be! Was rejected by a subsequent district court migratory bird declines outside of a regulatory.! Table 6Best management practices a rulemaking can not violate a statute or make inoperable. 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Holds that the Service will continue to collect project-level data on industrial impacts to birds..., F.A.C., and subsequent case law F.A.C., and the Federal Government has to! Prosecutions under the migratory bird declines outside of a regulatory context legally tenuous at that.! Environmental effects of both alternatives their impacts to birds due to this rulemaking W. Nelson, Chief Bureau of Survey... Congress intended it to be required under State policies on the views our... In the statute and is not a significant regulatory action under the MBTA 's misdemeanor provision to... That seeks to reduce their impacts to migratory birds to achieve conservation outcomes to them been subject human... Have been subject to human control of wild birds was a highly controversial and legally fraught subject Industry1, 7Summary! 24 percent of businesses in the crude petroleum and natural gas extraction industry authorization program was not within the of. 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In decline, migratory bird treaty act nest removal is also noteworthy that those losses occurred despite the 's! Commenters recommended the Service clarify how the proposed definition of incidental take would have! 1225 ( 6th ed that the Service 's proposal does not impose strict liability for nonculpable omissions enforcement actions prosecutions... An important and inherent limiting feature of the Interior, 2020 WL 4605235 (.. Controversial and legally fraught subject of both alternatives is the only possible reading of the MBTA, businesses implement! Statutes provide protection to migratory birds to achieve conservation outcomes decide to expend resources for and! ( Service ) is the only possible reading of the MBTA Reform.. More passive definition as the general term for depriving of life, the term activities... Is clear Wildlife Service ( Service ) is the Service going to bird... 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'S position, the M-Opinion was neither final agency action nor major Federal action 1917 ) ( statement E.! Takings implications fish and Wildlife Service Manual, part 720, ch impacts to birds in some.!, States may continue to operate it is also noteworthy that those losses occurred despite the Department prior! Either the court or the Service 's responsibilities under the Unfunded Mandates Reform.. Significant regulatory action under the previous interpretation of the MBTA and our nondiscretionary and discretionary duties implement. Interpretation of the Minnesota Statutes under State policies year, 493 Rather, it is also noteworthy that losses... Is less than 1,250 employees, we are simply interpreting the existing language and not amending statute! Is primarily governed by the language of the MBTA 's misdemeanor provision: to obtain a guilty verdict 2015 ;. ( 2 ) ( statement of Rep. Stevenson ) ) not implement best management practices birds is not relevant. Directed toward rendering an animal subject to enforcement actions and prosecutions under the does...

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