. ha[s] no apparent basis in the statute itself or in the prior history of the MBTA's application since its enactment); cf. See Geer v. Connecticut, 161 U.S. 519 (1896). This rulemaking should increase that cooperation and coordination by removing the specter of a potential criminal prosecution, which has often acted as a deterrent for private parties to share information with the Service on their impact on migratory birds and work with the Service on conserving migratory bird species. Because there is not now, nor has there previously been a large-scale permit program for incidental take, the baseline does not include the potential costs of complying with such a program, including the regulatory uncertainty associated with permit approval, compliance with other statutes (e.g., the National Environmental Policy Act), and potential litigation. Trucking Ass'ns, 531 U.S. 457, 468 (2001). In addition, a letter was sent through our regional offices to invite Tribes to engage in this proposed action via the government-to-government consultation process. When an intentional take permit is issued, conditions of that permit request any information on incidental mortalities that are discovered. 2. 2d at 1209. Protection may entail maintaining a safe, Comment: Multiple commenters noted that the effects of this rule on ESA-listed species must be seriously scrutinized in an EIS as well as in section 7 consultation under the ESA. documents in the last year, 493 The Fifth Circuit in CITGO stated, we disagree that because misdemeanor MBTA violations are strict liability crimes, a `take' includes acts (or omissions) that indirectly or accidentally kill migratory birds. The court goes on to note that [a] person whose car accidentally collided with the bird . In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. on NARA's archives.gov. The States voiced concerns that this rule would increase their species-management burden substantially as further declines in migratory bird populations could result in additional management requirements and protections for declining species, including additional listings under State endangered species protection laws implemented by State fish and wildlife agencies. The commenter stated that the Department and the Service misinterprets the Fifth Circuit's narrow decision in CITGO, 801 F.3d 477 (5th Cir. The U.S. Supreme Court has held: Under a long line of our decisions, the tie must go to the defendant. Comment: Multiple commenters presented arguments that the Service has misquoted the provisions of the MBTA and that the proposal does not address the statutory authority in section 3 to authorize take of migratory birds that would otherwise violate the statute, which the commenters contend is the source of the Secretary's authority to implement the statute. 1202. Under the MBTA it is illegal to destroy a nest that has eggs or chicks in it or if there are young birds that are still dependent on the nest for survival. OIRA has determined that this rule is significant. Closed wastewater systems typically used for reasons other than bird mitigation. Many of the companies and projects that face potential liability under the MBTA operate across boundary lines for judicial circuits. Given the success of the MBTA to date, the commenter felt the proposed action was unnecessary. This legal uncertainty also leads to scientific uncertainty about future impacts on birds. Congress was simply acting to preempt application of a judicial decision that specifically and immediately restricted military-readiness activities. . 3329; and Convention between the United States of American and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 U.S.T. Comment: One commenter recommended that the Service consider to what extent the proposed rule may increase regulatory uncertainty for industrial entities and other stakeholders. The NRDC court countered that referencing different manners of taking birds does not give effect to the by any means and in any manner language, but instead clarifies the term hunt because the referenced activities are primarily different means of hunting. Comment: Multiple commenters noted issues with how the proposed rule and associated NEPA document define a Federal action. The commenters noted that fundamental to this rulemaking effort is to identify properly the major Federal action. 13771 (82 FR 9339, February 3, 2017) deregulatory action. While the MBTA does contemplate the issuance of permits authorizing the taking of wildlife, it requires such permits to be issued by regulation. See 16 U.S.C. On March 16, 2020, the Service held a webinar that was restricted in attendance to allow only Tribal members to attend, with the sole purpose of informing Tribes of the proposed action. Response: The operative language originally enacted in section 2 of the MBTA has not substantively changed since 1936. . (emphasis added)). Collectively, the change in interpretation of these foundational laws and rules will undoubtedly remove any motivation for regulated entities to mitigate the harm caused by their actions on birds and their eggs and will increase incidental take. Instead, the MBTA and the Migratory Bird Conservation Act are complementary: Together, the Treaty Act in regulating hunting and possession and the Conservation Act by establishing sanctuaries and preserving natural waterfowl habitat help implement our national commitment to the protection of migratory birds. United States v. North Dakota, 650 F.2d 911, 913-14 (8th Cir. The commenter notes there is little mention in either notice of biological impacts or assessment of bird species protected by the Act. The proposed rule impermissibly excludes requirements of foreseeability and negligence by arguing that the statute only prohibits actions directed at birds to exempt industries whose projects kill birds incidentally. . The Migratory Bird Treaty Act makes it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, . under the Bald and Golden Eagle Protection . 3 with 16 U.S.C. Thus, the NRDC court erred in conflating the active and passive definitions of the word kill and finding no meaningful difference between the two. Response: The Service agrees with this comment. That action is directed at birds but does not take them in the common law sense that take means to reduce wildlife to human physical control, and it could also not be fairly characterized as hunting, pursuing, or capturing them either. FWS-HQ-MB-2018-0090 and at https://www.doi.gov/solicitor/opinions. . 13132. 703, Historical and Statutory Notes. 4816 (statement of Sen. Smith) (1917). documents in the last year. Comment: A letter from some members of the U.S. Senate stated that the stakes of the proposed rule are considerable, and like the legal opinion, it will have a significant detrimental impact on migratory birds. In addition to the snowy egret and the sandhill crane, the wood duck was one of the threatened species that prompted the passage of the Migratory Bird Treaty Act of 1918, after a landmark Supreme Court case, Missouri v. Holland, that asserted the federal government's right to regulate hunting. Providing a regulatory approach such as a permitting program or a program based upon a gross negligence approach Start Printed Page 1159would fulfill the Treaty obligations while also satisfying the intent of E.O.s 12866 and 13563. 04/17/2023, 211 Instead, the action was directed at protecting the farmer's crops from the birds, but not physically possessing or controlling the birds in any way other than killing them. We also note that this problem already exists in large part and do not expect this rulemaking to significantly contribute to inconsistencies in State laws. Compare Mexico Treaty Act, 49 Stat. High variability in survey costs and high variability in need to conduct surveys. Fish and Wildlife Service (we, the Service, or USFWS), published a final rule (January 7 rule) defining the scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA. This analysis examines the potential effect of the rule on small businesses in selected industries. prosecution for some of the activities seemingly embraced within the sweeping statutory definitions. Baggett v. Bullitt, 377 U.S. 360, 373 (1964); see also Mahler, 927 F. Supp. 703(a). . Federal statutes such as the Endangered Species Act and the Bald and Golden Eagle Protection Act require entities to take steps to reduce incidental take and protect habitat, which may in turn benefit migratory birds and other wildlife. Accordingly, an interpretation with broad implications for the American public was implicitly adopted without public debate. . Focusing on that difference and reading the term kill in relation to the other prohibited actions in section 2 before it, there is a compelling reason to read the term kill in an active sense. These mechanisms could reduce impacts to birds in some circumstances. Comment: One industry commenter claimed that an extreme application of the MBTA imposes criminal liability any time a migratory bird is killed incidental to another activity and would create an absurd and likely disastrous scenario in which the majority of Americans could be considered potential criminals. These three separate 45-day periods provided sufficient time for the public to address this rulemaking. A primary reason for engaging in this rulemaking is to remove any uncertainty in application of the statute to alleviate precisely the concern voiced by this comment. That which it meant when adopted, it means now. South Carolina v. United States, 199 U.S. 437, 448 (1905). These are the industries that typically incidentally take substantial numbers of birds and that the Service has worked with to reduce those effects. M-37050 and the preamble to the proposed rule explained the basis for the interpretation of the MBTA we are codifying in this rulemaking in great detail referencing the language of the statute itself, the international Conventions underlying the MBTA, its legislative history, and subsequent case law. Interpreting the MBTA to criminalize incidental takings raises potential due process concerns. About 135 species of birds breed around Portland. documents in the last year, 948 Regarding the commenter's statements on enforcing a negligence standard, the misdemeanor provision of the MBTA contains no mental state requirement and is a strict-liability crime. As detailed above, the Service has determined that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions directed at migratory birds, their nests, or their eggs is compelled as a matter of law. This rule does not lessen the requirements under the ESA and thus, species listed under the ESA continue to be afforded the full protection of the ESA. The commenters noted that the proposed rule change is extremely limited in scope as it fails to address the evolution of threats to migratory birds or to ensure the sustainability of healthy bird populations. Thus, in combination with the already significant population declines of many species, the proposed rule will almost certainly result in the need to increase the number of bird species listed under the Endangered Species Act (ESA) and increase the risk of extinction. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and have determined that this rule may have a substantial direct effect on federally recognized Indian Tribes. The commenters stated that the rule ignores the real major Federal action and agency decision of greatest consequence: The Service's reliance on Interior's M-Opinion 37050 to reverse course on decades of protections for migratory birds against incidental take. Comment: One commenter stated that the proposed rule does not address the Service's statutory authority to change the interpretation of the MBTA. at 813 (kill may mean the more active to put to death; to slay or serve as the general term for depriving of life); id. The word protection occurs in its first sentence. Some nests are hard to see and identify, making them more vulnerable to inadvertent destruction. was enacted in 1918 to help fulfill the United States' obligations under the 1916 Convention between the United States and Great Britain for the protection of Migratory Birds. 39 Stat. Any chicks within those nests would likely be destroyed killing those chicks, but the maintenance workers would not take them in the common law sense. We received Start Printed Page 1165requests from nine federally recognized Tribes and two Tribal councils for government-to-government consultation. High variability in cost and need to retrofit power poles. "The Migratory Bird Treaty Act is a bedrock environmental law that is critical to protecting migratory birds and restoring declining bird populations," said Secretary Deb Haaland. 715-715s). A takings implication assessment is not required. Table 4 shows the distribution of businesses by employment size and sales. Nine Tribes and two Tribal councils requested government-to-government consultation. Comment: Multiple commenters felt the manner in which this proposed rulemaking was announced on January 30, 2020, by the Service's Office of Public Affairs was improper and a violation of the APA (Pub. Comment: A commenter stated that the Service has done little to demonstrate how this proposed rule actually benefits birds, instead focusing almost exclusively on economic interests of previously regulated industries. structure See id. 2. This approach has long-term financial benefit as it focuses on prevention rather than reparations in the future. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y. Table 6 identifies examples of bird mitigation measures and their associated cost. Wind Electric Power Generation (NAICS 221115), Pre-construction adjustment of turbine locations to minimize bird mortality during operations Pre- and post-construction bird surveys As the Supreme Court has instructed, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. United States v. Shabani, 513 U.S. 10, 13 (1994). Therefore, this rule would not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. Unfunded mandates occur when Congress enacts Federal law that includes directives that must be carried out by States and does not also provide funding for the States to fulfill those Federal requirements. Any ambiguity inherent in the statute's use of the terms take and kill is resolved by applying established rules of statutory construction. 2d 1070, 1080 (D. Colo. 1999) (the MBTA's legislative history indicates that Congress intended to regulate recreational and commercial hunting); Mahler, 927 F. Supp. This, however, is exactly the mode of statutory construction rebuffed by the Supreme Court in Bostock. is not required. Additionally, after publication of the final EIS, the Government of Canada submitted a further comment expressing concern regarding this rule. One Member of Congress even offered a statement that explains why the statute is not redundant in its use of the various terms to explain what activities are regulated: [T]hey cannot hunt ducks in Indiana in the fall, because they cannot kill them. Several Tribes stated that they have no record of receiving any communication or outreach from the Service or DOI regarding the proposed regulation revisions or associated draft EIS, much less an invitation to consult on either. The proposed rule will harm species that have already been listed as threatened and subject to broad ESA section 4(d) regulations. The majority of these birds are federally protected under the Migratory Bird Treaty Act, which protects the birds, their nests, eggs, and feathers. Federal and State Rules and Statutes Governing Osprey Nest Removal in Minnesota. 2015), which held that the MBTA does not prohibit incidental take. on Foreign Affairs, 64th Cong. E.O. One of the easiest ways that anyone can support bird habitat conservation is by buying duck stamps. With respect to the wind industry, the Service will continue to encourage developers to follow our Land-based Wind Energy Guidance developed through the collaboration of many different stakeholders, including industrial and environmental interests. With this proposed change, the Service is making a unilateral change that will later be deemed an abrogation of our international agreements with these other sovereign nations. These tools are designed to help you understand the official document Accordingly, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Fox Television, 567 U.S. at 253 (quoting Connally v. General Constr. In this case, the Service appears at the scoping phase to have already selected the outcome it intended to reach. Response: This rulemaking does not present a false choice between regulatory certainty and implementing the MBTA. In the absence of a permit issued pursuant to Departmental regulation, it is not clear that the Service has any authority under the MBTA to require minimizing or mitigating actions that balance the environmental harm from the taking of migratory birds with other societal goals, such as the production of wind or solar energy. Comment: A commenter stated that the proposed rule will result in a dangerous slippery slope, making intent difficult to prove because if there is no regulation for unintentional take, then anything could be classified as incidental take. The proposed rule change puts the burden of proof on the Service of determining intent, which can be difficult or impossible to truly establish. The President of the United States communicates information on holidays, commemorations, special observances, trade, and policy through Proclamations. Register documents. By contrast, the NRDC court interpreted kill more expansively, holding that, in combination with the phrase by any means or in any manner, the MBTA unambiguously prohibits incidental killing. Fish and Wildlife Service interpretations and an earlier Solicitor's Opinion, M-37041, Incidental Take Prohibited Under the Migratory Bird Treaty Act. The Office of the Solicitor performs the legal work for the Department of the Interior, including the U.S. We disagree that this rulemaking will have a substantial impact on migratory bird populations when compared to prior agency practice. 68A-27.003(2)(a) and 68A-16.001, F.A.C., and the Federal Migratory Bird Treaty Act. Register (ACFR) issues a regulation granting it official legal status. . Comment: Several commenters concluded that the Department of Defense Authorization Act for Fiscal Year 2003 demonstrates that Congress intended the MBTA to prohibit incidental take of migratory birds because it directed FWS and the Department of Defense to develop a regulation authorizing incidental take of migratory birds during military readiness activities. Both the underlying M-Opinion and the preamble to this rule analyzed the prior interpretation and explained both why it is incorrect and why it does not provide the same level of certainty or consistency in enforcement. Such an interpretation could lead to absurd results, which are to be avoided. Some States may choose to enact changes in their management efforts and regulatory processes and staffing to develop and or implement State laws governing birds, likely increasing costs for States. The preamble to this rule explains our interpretation of the MBTA's statutory language and legislative history and why the interpretation set forth by this rule is consistent with and the best reading of that language and history. Currently, over 1,000 species of birdsincluding all species native to the United States or its territoriesare protected by the MBTA. the removal of longstanding protections, including consideration of a permitting framework. 1311, and Agreement Supplementing the Agreement of February 7, 1936, U.S.-Mex., Mar. As described in the preamble to this rulemaking, the Service continues to view the misdemeanor provision as a strict-liability crime consistent with the majority of Federal courts that have ruled on the issue. It can be difficult to detect whether birds or viable eggs are in a cavity. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small businesses, small organizations, and small government jurisdictions. An expansive reading of the MBTA that includes an incidental-take prohibition would subject those who engage in these common, and necessary, activities to criminal liability. Instead, the balance of the legislative history favors the opposite interpretation as explained in the preamble. Response: Best management practices (BMPs) have never been required under the MBTA, other than as part of our occasional application of the special purpose permit provision to authorize Start Printed Page 1148incidental take under certain circumstances, as there has never been a specific permit provision for authorizing incidental take that would require their implementation. The Service's Office of Law Enforcement will continue to investigate unauthorized taking and killing of migratory birds resulting from actions directed at migratory birds. . This failure to address threats beyond harvesting undermines the United States' commitment under the amended Canada treaty to ensure the long-term conservation of shared migratory bird species. We decline to adopt this proposal for the same reasons we rejected application of a gross-negligence standard. The commenters suggested that the Service modify the proposed rule to include a provision where incidental take resulting from reckless negligent behavior is considered a violation (i.e., gross negligence). Moreover, M-37050 is consistent with the Fifth Circuit appellate court decision in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. Given the uncertain future of M-Opinion 37050 and accompanying legal vulnerability of the proposed rule, it would be prudent for the Service to put the proposed rulemaking on hold until the courts have determined whether the M-Opinion on which it is based withstands legal scrutiny. I have never been able to see why you cannot hunt, whether you kill or not. We have undergone interagency review of this rulemaking at the proposed and final stages facilitated by the Office of Management and Budget, which included input from the State Department. 1917 ) appears at the scoping phase to have already selected the outcome it intended reach. 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