On Friday, December 22, 2017, the Department of the Interior (DOI) issued a Solicitor’s Opinion concluding that an incidental take is not a violation of the Migratory Bird Treaty Act (MBTA) (the “Trump Solicitor’s Opinion”).1 The Trump Solicitor’s Opinion rescinds and replaces an opinion issued in the closing days of the Obama Administration reaching the opposite conclusion. The Trump Solicitor’s Opinion finds that the MBTA prohibits only affirmative and purposeful actions to take migratory birds. Incidental takes that are not the purpose of an action, even if they are direct and foreseeable results, are not subject to potential criminal prosecution. The Trump Solicitor’s Opinion provides a safe harbor for actions that may unavoidably kill migratory birds, such as oil and gas production and wind turbine operations, by removing the threat of criminal prosecution. However, some groups may seek to challenge the Trump Solicitor’s Opinion (despite significant questions concerning its reviewability in a facial challenge), and another reversal-of-course accompanying any future change in administrations could occur.
Several federal appeals courts have ruled on the authority of the federal government to criminalize incidental takes of migratory birds under the MBTA, but the courts do not agree. The Fifth, Eighth, and Ninth Circuits have found that the MBTA does not criminalize accidental killings of migratory birds,2 while the Second and Tenth Circuits have ruled that the MBTA criminalizes some incidents of incidental take (generally with some form of limiting instruction).3 With the circuits split, the Obama Administration declined to seek Supreme Court review of its most recent defeats in the Fifth and Eighth Circuits, and instead issued the Obama Solicitor’s Opinion and stated that it would issue incidental take regulations.
Currently, Section 2 of the MBTA4 makes it illegal to “pursue, hunt, take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, . . . purchase, . . . ship, . . . export, import, . . . transport, . . . [or] carry . . . any migratory bird, any part, nest, or eggs of any such bird, or any product . . . of any such bird or any part, nest, or egg thereof.”5 The statute provides for strict liability, allowing for criminal prosecution regardless of the intent of the actor. According to the now-rescinded and replaced Obama Solicitor’s Opinion, the U.S. Fish & Wildlife Service (FWS) had consistently interpreted the statute to apply only to incidental takes in which the death of the migratory bird was reasonably anticipated or foreseen as a natural consequence of the action.6 Notwithstanding this proximate cause limitation, the FWS had failed to establish a national permitting program or other safe harbor provision for good actors. Rather, the FWS issued voluntary guidelines, or recommended best practices, to guide operators in certain industries in complying with the MBTA. But in the Second and Tenth Circuits, where incidental takes were found to be prohibited under the MBTA, such guidelines and best practices did not provide safe harbor to operators who attempted to comply with them. Instead, such actors were forced to rely on a prosecutor’s discretion. The Trump Administration withdrew the Obama Solicitor’s Opinion and went with the weight of the circuit opinions; the two most recent circuit courts of appeals decisions reached the same conclusion.
The Obama Solicitor’s Opinion
The Obama Solicitor’s Opinion M-37041 – Incidental Take Prohibited Under the Migratory Bird Treaty Act, issued January 10, 2017, in the final days of the Obama Administration, concluded that the MBTA does prohibit the incidental killing of birds, so long as the death is reasonably anticipated or foreseen as a natural consequence of the action (the “Obama Solicitor’s Opinion”).7 Thus, under the Obama Solicitor’s Opinion, an operator of an oil and gas facility could have been subject to fines and penalties for the unintended killing of a migratory bird resulting from his or her operations in the field, at least outside the Fifth, Eighth and Ninth Circuits, which have interpreted the MBTA otherwise. The operator’s only refuge would come in the form of prosecutorial discretion. In conjunction with issuance of the Obama Solicitor’s Opinion, the Obama Administration stated that it intended to issue new incidental take regulations under the MBTA, but that effort was cut off by the election of the new administration. In February, the Trump Administration suspended the Obama Solicitor’s Opinion pending review.8
The Trump Solicitor’s Opinion
In the Trump Solicitor’s Opinion, DOI’s principal deputy solicitor, Daniel Jorjani, wrote that applying the law “to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.” Under the Trump Solicitor’s Opinion, the MBTA “unambiguously require[s] an affirmative and purposeful action” that kills a migratory bird (e.g., hunting); the MBTA does not apply to other activities that kill birds only incidentally (e.g., oil and gas production, mining, wind turbine operations, driving a car). To support that conclusion, the Trump Solicitor’s Opinion focuses on the historical purpose of the statute as reflected in the plain language of the statute, the impetus for the MBTA (to implement a treaty with Great Britain that sought to curtail the supply of bird feathers for ladies’ hats), and the language of the statute, including the operative verbs (pursue, hunt, take, capture, and kill). “Reading the MBTA to apply to incidental takings,” the opinion states, “casts an astoundingly large net that potentially transforms the vast majority of average Americans into criminals.” This interpretation marks a win for energy interests that viewed the Obama Administration’s previous position as overreaching.9
The FWS estimates more than 30 million birds die each year in collisions with power lines and communications towers, and hundreds of thousands more in oil pits and wind turbines.10 Reaction to the Trump Solicitor’s Opinion was predictably mixed.
David O’Neil, chief conservation officer for the National Audubon Society, said the policy reversal could make it less likely that energy operators would invest in precautionary measures to prevent bird deaths.11 He said that the prospect of legal liability had fostered efforts such as developing bird‑friendly guidelines for placing transmission lines. However, as stated above, following industry best practices or FWS guidelines for protecting migratory birds may not save an industry operator from significant fines and/or jail time under the Obama Solicitor’s Opinion in certain areas of the country.
At least two industry groups praised the administration’s interpretation as a reasonable approach. Erik Milito, director of upstream operations at the American Petroleum Institute, said “This opinion makes clear that the [MBTA] should not be used for overzealous enforcement of criminal penalties on those engaging in otherwise lawful activities.”12 He continued, “The department’s approach is an example of astute governance that provides certainty for responsible owners and operators of oil and natural gas facilities.”
Likewise, Tim Charters, senior director of government affairs for the National Ocean Industries Association, said, “Over the last few years, the management of ‘take’ under MBTA has been riddled with flawed decisions that have created massive uncertainty. . . . Thankfully, today’s action brings a common-sense approach by recognizing many circuit court findings that the scope of takings under the MBTA only prohibits intentional acts that directly kill migratory birds.”13
At least for the time being, the Trump Solicitor’s Opinion provides sought-after relief and assurances to industry operators nationwide engaging in activities that unavoidably and accidentally kill migratory birds, but such safe harbor could be short-lived as some groups may seek to challenge the policy (despite significant questions concerning its reviewability) and any future administration could reverse course in a similar fashion. Because the MBTA does not include any citizen suit provision, only the federal government can initiate an enforcement action under the MBTA, and the Trump Solicitor’s Opinion makes clear this Administration does not intend to do so. Regardless, many birds listed under the MBTA are protected under other statutes as well, such as the Endangered Species Act and the Bald and Golden Eagle Protection Act (BGEPA), and most actions that minimize impacts to ESA- and BGEPA-protected species will benefit MBTA species as well. As a result, it is sensible for operators to continue best efforts to mitigate the take of migratory birds and plan future developments in compliance with prudent industry practices and best practice guidelines. Absent a Supreme Court ruling or legislative action by Congress,14 the issue of whether the MBTA criminalizes incidental take will remain in flux.