By Jillian Knox.
According to Charlie Day, the noted but fictional bird lawyer in It’s Always Sunny in Philadelphia, “bird law in this country [is] not governed by reason.” Over the last four years, the Trump Administration seemed anxious to prove Mr. Day right—reinterpreting a century-old bird law, upending the remarkably consistent interpretation of “every administration (Republican and Democrat) since at least the 1970’s.” Thankfully, the Biden Administration has already taken concrete steps to restore order to bird law in the United States.
The Migratory Bird Treaty Act
The Migratory Bird Treaty Act of 1918 (“MBTA”) was enacted in response to plummeting bird populations across North America. It currently protects over 1,000 species—nearly all native bird species in the United States, including Arizona’s state bird, the cactus wren. In broad language, the MBTA states:
Unless and except as permitted by regulations . . . it 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, any part, nest, or egg of any such bird . . . .
Initially, the MBTA was remarkably successful at protecting birds from overexploitation, and courts faced little difficulty applying the Act to bird deaths caused by market hunters. However, the primary threats to birds changed as the country industrialized. Currently, the leading causes of bird mortality (other than habitat loss and degradation) include communication towers, power lines, oil field pits and wastewater disposal facilities, mining activities, and wind turbines.
Incidental Take
Bird deaths incidental to, and not the purpose of, an otherwise lawful activity are incidental takes. Federal circuit courts disagree about whether prohibited “take” of migratory birds under the MBTA includes incidental take. The Second and Tenth Circuits have taken an expansive view, holding that the statute’s prohibitions apply to incidental take from industrial activity. In United States v. FMC, the Second Circuit held that a company’s failure to prevent pesticidal contamination of a wastewater pond violated the MBTA because it resulted in the unlawful killing of migratory birds. Although FMC argued that it did not intend to kill the birds, the court reasoned the MBTA is a strict liability statute. The Eighth and Ninth Circuits adopted a slightly narrower view, focusing on whether the activity directly led to bird deaths, although the cases were limited to habitat destruction. In 2015, however, the Fifth Circuit adopted an extremely limited view in United States v. CITGO, holding that the MBTA’s prohibition of “take” only applies to “intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.”
Despite the circuit split, the MBTA was not a particularly politicized issue before 2017; for nearly 50 years, U.S. Fish and Wildlife Service (“FWS”) interpreted the MBTA as prohibiting incidental take by industry actors. In early 2017, the Obama Administration’s Solicitor of Interior Hilary Tompkins issued a memorandum explicitly summarizing the Department of Interior’s (“DOI”) position that incidental take is prohibited by the MBTA and rejecting CITGO.
The Trump Administration’s Take on Migratory Birds
The Trump Administration disagreed. Less than a year later, the DOI’s Principal Deputy Solicitor, Daniel Jorjani issued Solicitor’s Opinion M-37050 (“Jorjani Opinion”), concluding the MBTA doesnotapply to incidental take. The Opinion asserted the MBTA applies only to “direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.”
The Jorjani Opinion triggered an immediate reaction from conservation groups, government entities, and others. Seventeen former high-ranking DOI officials, whose terms in office date back to the Nixon Administration, penned an open letter sharply criticizing the Opinion as contrary to the long-standing MBTA interpretation of every administration for the last 50 years. Environmental groups and several States brought actions to vacate the Jorjani Opinion, which were consolidated in Nat. Res. Def. Council, Inc. v. U.S. Dep’t of the Interior. The plaintiffs challenged the DOI’s interpretation as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the Administrative Procedure Act.
In August 2020, in a resounding rejection of the Jorjani Opinion, the District Court for the Southern District of New York stated the MBTA does not “prohibit only intentionally killing migratory birds.” Rather, the court reasoned that “‘Congress chose statutory language broad enough to meet’ new threats to migratory bird populations as they emerged in ensuing decades.” The court further reasoned that “[t]he MBTA’s impressive scope ‘reflects an intentional effort to confer the flexibility necessary to forestall [its] obsolescence.’” The court concluded the Jorjani Opinion was “contrary to the plain meaning of the MBTA and therefore must be vacated.”
The Trump Administration was undeterred. In October of 2020, the Justice Department declared it would appeal. A month later, the Administration released a final environmental impact statement to codify the Jorjani Opinion’s interpretation of the MBTA. On January 5, 2021, FWS released the draft of their final rule. On January 20, President Trump left office.
The Biden Administration: Looking Forward
The Biden Administration was quick to counteract the changes made by its predecessor. On January 20, Biden directed the DOI to review the new MBTA rule. On February 5, the White House delayed the new rule’s implementation, opening a 20-day comment period. In response, House Natural Resources Chairman Raúl M. Grijalva, of Arizona, remarked the “Biden administration has done an excellent job of refocusing public regulations on public input and public good rather than polluters’ checkbooks.”
Perhaps most significantly, President Biden chose Congresswoman Deb Haaland to lead the DOI. Congresswoman Haaland’s appointment is important for several reasons. For example, she is the first Native American cabinet secretary in the nation’s history. Congresswoman Haaland is also good news for migratory birds: in 2020, Representative Haaland cosponsored the Migratory Bird Protection Act, which would restore the pre-Jorjani interpretation and create a permitting program to regulate incidental take. Such a program is supported by conservation groups, including National Audubon Society and the Center for Biological Conservation.
Migratory Birds in Arizona
The debate over MBTA interpretation holds special meaning for Arizona, which includes 48 state-designated Important Bird Areas and is one of the majority migratory corridors for birds who winter in the tropics and nest further north. In particular, Arizona is home to river corridors like the San Pedro River, which supports over 250 migratory bird species and is an “enormously important migratory bird conduit providing stopover and feeding habitat for nearly five million songbirds each spring.”
The effect of MBTA regulations is felt on a smaller scale, too. When a homeowners’ association in Arizona complained that a developer had destroyed nests belonging to Burrow Owls, which are protected by the MBTA, FWS said there was nothing it could do under the Jorjani Opinion’s new interpretation.
Hopefully, under new leadership, the MBTA can once again secure safe passage for migratory birds in Arizona and throughout the United States.
