In the last month, two separate federal district courts have declined to extend the scope of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 (MBTA), to federal agency approvals of projects that plaintiffs alleged could potentially and indirectly result in the “taking” of migratory birds. The impact of these decisions is important to industries, such as the wind power industry, that face legal challenges premised on allegations that their future operations will harm migratory birds in violation of the MBTA.
Under the MBTA, it is unlawful “to pursue, hunt, take, capture [or] kill” any native migratory bird species unless permitted by the U.S. Fish and Wildlife Service. 16 U.S.C. § 703. The MBTA is primarily a criminal statute, 16 U.S.C. § 707(a), but federal courts have found it applicable to federal agencies through the Administrative Procedure Act (APA). See Humane Society v. Glickman, 217 F.3d 882, 887 (D.C. Cir. 2000). Where MBTA claims are pursued against the federal government, the plaintiffs frequently contend that federal agency action results in the taking of migratory birds is unlawful unless the agency obtains a MBTA permit. The plaintiffs in Protect Our Communities Foundation v. Chu, 12-CV-3062, 2014 WL 1289444 (S.D. Cal. Mar. 27, 2014) and Public Employees for Environmental Responsibility v. Beaudreu, 10-CV-1067, 2014 WL 985394 (D.D.C. Mar. 14, 2014) recently advanced this same argument.
In Protect Our Communities Foundation, the plaintiffs alleged that the Department of Energy was required to obtain a permit under the MBTA prior to issuing a Presidential permit approving the construction of a cross-border electric transmission line that would connect a wind power project to the electricity grid. Similarly, in Public Employees for Environmental Responsibility, the plaintiffs argued that the Bureau of Ocean Energy Management needed to obtain an MBTA permit prior to authorizing the Cape Wind offshore wind project. The courts rejected plaintiffs’ claims in both cases. In Protect Our Communities Foundation, the court determined that the federal government did not need to obtain a permit where the action alleged to take a migratory bird (1) was unintentional and incident to a lawful activity and (2) was the action of a non-governmental third party. 2014 WL 1289444 at *9. Similarly, the court in Public Employees for Environmental Responsibility, held that the MBTA “does not appear to extend to agency action that only potentially and indirectly could result in the taking of migratory birds.” 2014 WL 985394 at *32 (“the Court finds that the BOEM did not violate the Migratory Bird Treaty Act by merely approving a project that, if ultimately constructed, might result in the taking of migratory birds”).
These cases are important for two main reasons. First, the courts refused to expand the scope of the MBTA to cover federal approvals of actions that may potentially and incidentally cause bird deaths. Historically, the MBTA served as a tool to prevent hunters and poachers from taking migratory birds. See, e.g. Glickman, 217 F.3d at 885 (“[a]s § 703 is written, what matters is whether someone has killed or is attempting to kill or capture or take a protected bird, without a permit and outside of any designated hunting season.”); Protect our Communities Found. v. Salazar, 12-CV-2211, 2013 WL 5947137 *18 (S.D. Cal. Nov. 6, 2013) (“the MBTA was intended to prohibit conduct directed towards birds and did not intend to criminalize acts or omission that are not directed but which incidentally cause bird deaths”). Where lawful activities incidentally result in harm to migratory birds, such as timber harvesting, courts have refused to find a violation of the MBTA. See Newton County Wildlife Ass’n v. US Forest Serv., 113 F.3d 110, 115 (8th Cir. 1997); Seattle Audubon Society v. Evans, 952 F.2d 297, 302 (9th Cir. 1991). The recent court opinions adhere to this same philosophy. Given that wind turbines, planes, buildings, and even domestic cats can potentially take a migratory bird, requiring permits for each would be an administrative nightmare.
The courts’ decisions are also important because they prevent another hurdle from arising in the federal approval process. The federal permitting and approval process for large industrial projects can be slow and onerous. If the courts had required agencies to obtain MBTA permits, this undoubtedly would delay current and future projects. These recent decisions are good news for an industry already subject to significant federal review.