On December 22, 2017 the Department of the Interior (“DOI”) Solicitor’s Office issued its revised interpretation of the Migratory Bird Treaty Act’s (“MBTA”) prohibition on the take of migratory bird species. Official opinions from the DOI Solicitor’s Office are known as “M Opinions” and carry substantial weight in how DOI applies and enforces the various wildlife laws under its purview. In January 2017, the prior DOI Solicitor issued Opinion M-37041, Incidental Take Prohibited Under Migratory Bird Treaty Act, which concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” Less than a month after Opinion M-37041 was issued, the Acting Secretary of the Interior issued a memorandum temporarily suspending Opinion M-37041, pending a review by the new Acting Solicitor.

The December 22, 2017 Solicitor’s Opinion, Opinion M-37050, represents the conclusion of the DOI Solicitor’s Office’s review of the MBTA’s prohibition on take and a complete reversal of Opinion M-37041. Opinion M-37050 explicitly states that “this memorandum permanently withdraws and replaces Opinion M-37041.” Significantly, Opinion M-37050 concludes that “consistent with the text, history, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.” (Emphasis added). In other words, take of a migratory bird, its nest, or eggs that is incidental to another lawful activity does not violate the MBTA, and the MBTA’s criminal provisions do not apply to those activities.

Opinion M-37050 will likely have significant ramifications for regulated industries that have wrestled with MBTA compliance, particularly those facing potential incidental take of migratory birds. Check back soon for a more comprehensive analysis of Opinion M-37050.