On May 7, 2021, the U.S. Fish and Wildlife Service (USFWS), as many anticipated, published a proposed rule to revoke a Trump Administration rule impacting the scope of the Migratory Bird Treaty Act (MBTA). The Trump Administration rule was finalized on January 7, 2021 and became effective March 8, 2021. It clarified that the MBTA’s prohibition against the take of migratory birds did not extend to death or injury of migratory birds that results from, but is not the purpose of, an action (also known as incidental take). Prior to the Trump Administration Rule, USFWS had, for decades, taken the position that the MBTA’s take prohibition does extend to incidental take. The USFWS’s longstanding position has been both upheld and rejected across the various federal appellate courts. If the USFWS finalizes its revocation of the Trump Administration rule, incidental take of the 1000+ migratory birds protected by the MBTA could once again be subject to criminal penalties based on judicial precedent. Since no permitting program to authorize incidental take exists under the MBTA, activities resulting in incidental take will be at the mercy of USFWS’ enforcement discretion to avoid criminal liability under the MBTA.

The publication of the proposed rule announces a 30-day comment period, which will close June 7, 2021. The USFWS seeks comment specifically on the following: (1) Whether the USFWS should revoke the rule, as proposed, and why or why not; (2) The costs or benefits of revoking the rule; (3) The costs or benefits of leaving the rule in place; and, (4) Any reliance interests that might be affected by revoking the rule, or not revoking the rule.