Tag: wildlife

The Migratory Bird Treaty Act: Flight of Fancy or Enduring Change?

The Trump Administration has issued a proposed rule, 85 Fed. Reg. 5915 (February 3, 2020), that would codify its interpretation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq., as applying only to the direct take of birds subject to the Act.  For decades, the federal government interpreted the MBTA as criminalizing both the direct (intentional) and incidental (unintentional and incident to an otherwise lawful activity) take of birds, their nests, and eggs covered by the Act.  Permission could be obtained for direct take, for example for hunting or for control of nuisance birds, but no such MBTA-specific framework existed to evaluate and permit incidental take under the Act.  As a result, project proponents, such as builders of wind farms, were left negotiating informal arrangements with the federal government in some circumstances or found themselves at the mercy of “prosecutorial discretion,” in others.  The leading causes of incidental bird deaths — cats, collisions with buildings, and collisions with cars — were left largely unaddressed by the federal government in implementation of the MBTA.  Judicial decisions addressing the scope of the Act have held both that the Act does criminalize incidental take and that it does not.

Into this flighty situation stepped the Trump Administration.  On December 22, 2017, the Principal Deputy Solicitor of the Department of the Interior issued a legal opinion that reversed years of practice and a prior legal opinion, concluding that the MBTA does not prohibit incidental take.  Consistent with that opinion, on February 3, 2020, the Administration issued a proposed rule that would codify the revised interpretation.  The proposed rule relies on the plain language of the statute, its history, and on constitutional concerns surrounding the extension of criminal liability under a statute that is ambiguous at best.

The MBTA 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, possess . . . any migratory bird, any part, next, or egg of any such bird . . . .”  16 U.S.C. 703(a).  Proponents of the prior interpretation urge that the language “at any time, by any means or any manner” evidences an intent to broadly criminalize any acts that result in bird deaths, even if they are not deliberate and not targeted at birds.  The proposed rule rests on a contrary view – that the words “hunt, take, capture, kill” are all affirmative acts directed at birds that have the purpose of reducing them to human control.   In the proposed rule, the Administration considers the legislative history of the Act and concludes that it confirms the view that the MBTA was enacted to address the direct take of birds — in response to over-hunting of birds and to Canadian concerns regarding the impact of U.S. actions on bird populations in Canada – and not to broadly criminalize any and all behavior that may kill birds.

The Trump Administration’s interpretation is already under review in the United States District Court for the Southern District of New York.  In that case, the plaintiffs brought a direct challenge to the Department of the Interior’s 2017 legal opinion.   The court denied the government’s Motion to Dismiss the matter; summary judgment briefing is ongoing.

Comments on the proposed rule can be submitted through March 19, 2020, in Docket No. FWS-HQ-MB-2018-0090 at www.regulations.gov.

© 2020 Bracewell LLP

ARTICLE BY Ann D. Navaro of Bracewell LLP.

Massachusetts' Highest Court Upholds State's Endangered Species Regulations

 

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In a long-awaited ruling, the Massachusetts Supreme Judicial Court affirmed the legality of the “priority habitat” regulations created by the Division of Fisheries and Wildlife (DFW) of the Massachusetts Department of Environmental Protection under the Massachusetts Endangered Species Act (MESA). In Pepin v. Division of Fisheries and Wildlife, SJC No. 11332 (February 18, 2014), the petitioners challenged the DFW’s establishment of “priority habitat” regulations “for which MESA makes make no express provision.”

MESA does expressly authorize DFW to designate certain areas as “significant habitats” of endangered or threatened species.  Land designated a “significant habitat,” entitles an owner to (i) advance written notice that the land is being considered for designation as a significant habitat, (ii) a public hearing before any decision on the proposed designation is made, and (iii) an opportunity to appeal and seek compensation under the “takings” clause of the U.S. Constitution. Arguably to avoid paying just compensation, the DFW has never designated land “significant habitat.”

Instead, the DFW promulgated regulations establishing a second type of protected habitat  denoted “priority habitat,” to protect species that are either endangered or threatened, or that fall into a third category of “species of special concern.” Delineations are “based on the best scientific evidence available.” A sixty-day public comment period follows the reevaluation of the priority habitat map every four years and a final map is posted on the DFW’s web site.  The DFW reviews projects in a “priority habitat” on a case-by-case basis to determine whether it would result in either (i) a “no” take, (ii) a “conditional” no take, or (iii) a take. Even if DFW finds the project would be a “conditional” no take or a “take,” the project may proceed under DFW-imposed conditions or a “conservation and management permit.”

Here, the petitioners’ property consists of two building lots, totaling approximately 36 acres. In 2006, the property was delineated a priority habitat for a species of special concern (eastern box turtle). Challenging the validity of the “priority habitat” regulations, the petitioners maintained that MESA’s creation of the “significant habitat” designation with critical procedural protections meant that all landowners were entitled to the same protections whenever property development is restricted under MESA.  Citing the broad authority granted by MESA, the Court rejected this view and instead found that that statute “extends to the formulation of the priority habitat concept as a means of implementing MESA’s prohibition on takes.”  The Court refused to “substitute [its] judgment as to the need for a regulation, or the propriety of the means chosen to implement the statutory goals, for that of the agency, …[where] the regulation … [was] rationally related to those goals.”  The petitioners could not overcome the presumption of validity accorded “duly promulgated regulations of an administrative agency….”

The Court also ruled that in deciding the petitioners’ challenge to the application of the priority habitat mapping guidelines to their property, a Division of Administrative Law Appeals (DALA) magistrate judge properly ruled in favor of the DFW even without a hearing because the petitioners failed to meet their burden of demonstrating that the DFW improperly delineated their property as priority habitat.

Article By:

Brian C. Levey
Marc J. Goldstein
 
Of:
Beveridge & Diamond PC