On December 22, 2017, the Office of the Solicitor of the Department of the Interior issued a Memorandum re: The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, which substantially modifies the Department’s policy regarding the criminal enforcement of the Migratory Bird Treaty Act’s (MBTA) prohibition against the incidental taking or killing of migratory birds. In addition, this Memorandum withdraws a contrary opinion of the Solicitor’s Office that was issued on January 10, 2017 – Memorandum re: Temporary Suspension of Certain Solicitor M-Opinions Pending Review. This could be a very important change for the energy industry.

The opinion concludes by stating that:

“The text, history and purpose of the MTBA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs, by killing or capturing, to human control… Interpreting the MTBA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principal that ambiguity in criminal statutes must be resolved in favor of defendants.”

The basic issue is whether an incidental, that is to say, unintentional, taking of a migratory bird subjects a person to federal criminal misdemeanor prosecution. An incidental take is considered to be one that results from an activity, but is not the purpose of that activity.

The January 2017 opinion 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.” However, the December 22, 2017 opinion, identified as Opinion M-37050 “permanently withdraws and replaces” the January 2017 opinion, based on the Department’s further analysis of the text, history and purpose of the MTBA, as well as relevant case law.”

The recent decision of the U.S. Court of Appeals for the Fifth Circuit, in U.S. v. CITGO Petroleum Corp., is cited as a strong reason to make this change in policy, which should be important to oil and gas exploration, production and manufacturing operations.

The opinion concludes by stating that: “The text, history and purpose of the MTBA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs, by killing or capturing, to human control… Interpreting the MTBA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principal that ambiguity in criminal statutes must be resolved in favor of defendants.”