On June 7, 2016, the U.S. Court of Appeals for the Ninth Circuit rejected plaintiffs’ claim, among others, that the U.S. Bureau of Land Management’s (BLM) violated the Migratory Bird Treaty Act (MBTA) by granting a right-of-way to a private company to develop and operate a wind energy facility.  Protect Our Communities Foundation v. Jewell, No. 14-55842, 14-55666 (9th Cir. June 7, 2016).

Plaintiffs argued that BLM—by granting a right-of-way to Tule Wind LLC (Tule)—was “complicit” in future conduct by Tule that might result in violations of the MBTA.  Beyond this assertion of direct, vicarious liability of BLM for future bird fatalities, plaintiffs asserted liability under the Administrative Procedure Act (APA) based upon BLM’s failure to condition its right-of-way grant on Tule securing take permits from the U.S. Fish and Wildlife Service (Service).  In rejecting both arguments, the Ninth Circuit held that the MBTA does not contemplate vicarious liability of agencies that act in a purely regulatory capacity where those regulatory actions do not directly or proximately cause the “take” of migratory birds.  The BLM authorization for Tule to construct and operate a wind energy facility on public lands was held not to “take” migratory birds without a permit under the MBTA.  Further, the court concluded that BLM was not required to condition its right-of-way approval, holding that the APA and MBTA place no affirmative duty on BLM to guarantee a grantee’s compliance with the MBTA or prevent future unlawful action by a grantee.

This decision does not comment on whether incidental take of migratory birds by a wind energy facility is a violation of the MBTA.  The Court was cautious to avoid interpreting whether the MBTA prohibits incidental take of migratory birds and did not address either the existing circuit split on whether incidental take is prohibited by the MBTA or the fact that no incidental take permit program yet exists under the MBTA.

Interestingly, Tenth Circuit judge Timothy Tymkovich sat by designation on the Ninth Circuit panel that heard this case.  Judge Tymkovich authored the Tenth Circuit opinion in U.S. v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010), holding that the MBTA is a strict liability statute, containing no intent requirement, which is violated by the incidental take of migratory birds where that “take” is foreseeable.  However, in Protect Our Communities Foundation v. Jewell, the Ninth Circuit tacitly declined to address the issue of MBTA liability arising from incidental take.

The Ninth Circuit’s decision has already been cited by the government in ongoing litigation in the U.S. Court of Appeals for the D.C. Circuit involving the Cape Wind offshore wind energy development.  Public Employees for Environmental Responsibility v. HopperNo. 14-5301.  The government has cited the case to support its position that, where an agency acts in a purely regulatory capacity, it is not liable under the MBTA for migratory bird fatalities caused by a regulated entity’s future actions.

While the judiciary continues to develop MBTA jurisprudence, the Service is in the process of developing regulations to: (1) define MBTA-prohibited “take” to encompass incidental take occurring unintentionally as a result of otherwise lawful activities; and (2) establish an incidental take permit program. However, the ultimate fate of these regulations remains uncertain.