On January 30, 2020, the U.S. Fish and Wildlife Service (FWS) proposed a regulation formalizing its previously announced interpretation of the Migratory Bird Treaty Act (MBTA). Prior to this administration, the MBTA had been read to be a strict liability statute that applied to any killing of listed migratory birds, whether deliberate or incidental to a legal activity.

The new regulation would incorporate the 2017 FWS interpretation that the statute does not apply to such incidental take.

What It Means

For birds, not much. For any new administration, it would make a change in position more difficult.

The prior interpretation of the MBTA was broad enough to include persons allowing their cats to roam outside, and operators of buildings with glass windows. In practice, through the exercise of prosecutorial discretion, FWS had applied the statute only to some incidental take situations, largely waste pits at oil, gas and mining operations, and more recently wind power turbine operations.

In terms of MBTA enforcement, the addition of the regulation only formalizes the administration’s exercise of prosecutorial discretion. If the position is put in place in a regulation, however, a new administration would find it more difficult to revert to the former practice.

For the birds, this is a less drastic turnaround than it might appear. The longstanding prior interpretation, if read and enforced literally, would cover bird fatalities from outdoor domestic cats, building and car collisions, and a myriad other causes of bird mortality. The Center for Biological Diversity, which has a pending lawsuit challenging the 2017 interpretation, noted there are an estimated 3 billion fewer birds in North America than 50 years ago.

But feral and domestic outdoor cats kill 2.4 billion birds a year, and collisions with vehicles and the glass in buildings kill over 800 million birds annually. Oil pits and wind turbines kill less than a million. Thus, the exercise of prosecutorial discretion has always meant that far and away most causes of bird mortality are ignored under the MBTA.

Moreover, there has been a split in the federal courts of appeal on whether the MBTA should be given such a broad interpretation. The most recent decision, by the 5th Circuit Court of Appeals, expressly held that the MBTA did not apply to incidental take. Thus, while the view of prior administrations on the application of the MBTA was uniform, that interpretation has not been accepted by federal courts in a substantial portion of the U.S.

And for bald and golden eagles, and any threatened or endangered bird species, the protections of the Endangered Species Act and the Bald and Golden Eagle Protection Act remain. Notably, when settlements have been reached with wind farms, the MBTA is cited, but the resolution has typically been to require a permit under the BGEPA aimed at protection of golden eagles.

A bright line interpretation of the MBTA that allows all incidental take is no better a solution than an unfettered reliance on prosecutorial discretion. It is probably a futile suggestion, but a more reasonable solution to the protection of migratory birds is the approach taken in the Endangered Species Act and the Bald and Golden Eagle Protection Act.

Congress could establish a statutory scheme that allows the agencies to regulate the incidental taking of birds, after weighing the costs and benefits of allowing the activity to proceed. Birds should be protected, but companies are entitled to know the boundaries within which they can operate lawfully.