Response: This rulemaking does not present a false choice between regulatory certainty and implementing the MBTA. Annual nationwide labor cost to implement wind energy guidelines: $17.6M This environmental review should focus on the biological impacts and benefits to birds of the proposed rule and any authorization program that the Service is considering. In accordance with E.O. More information and documentation can be found in our The Service's selection of this alternative and the basis for that selection are provided in the Record of Decision signed by the Director of the U.S. Response: This approach would be very similar to establishing a policy to decline enforcement except in cases of gross negligence. These mechanisms could reduce impacts to birds in some circumstances. does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisionsit does not, one might say, hide elephants in mouseholes. Whitman v. Am. The OFR/GPO partnership is committed to presenting accurate and reliable The U.S. . The MBTA fails this test. Comment: The Flyway Councils noted that the proposed rule was brought forth without the proper procedures as outlined by NEPA and the APA. However, the conclusion that the taking and killing of migratory birds is a strict-liability crime does not answer the separate question of what acts are criminalized under the statute. We summarized and addressed substantive comments received from the Government of Canada in Appendix C of the final EIS. Comment: Multiple Tribes stated that the United Nations Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP), endorsed by the United States in 2010, recognizes that indigenous people must give Free, Prior and Informed Consent for projects affecting their interests, prior to approval of any project affecting their land or territories. The Service acknowledged in the EIS that this rule may result in incremental declines in bird populations as companies learn they are not required to implement best management practices to decrease incidental take. The Court held that this omission alone renders [the agency's] decision arbitrary and capricious. Id. We will continue to cooperate with States that request our assistance in developing best management practices for various industries that minimize incidental take of migratory birds. The EIS compares the environmental effects of both alternatives. See generally CITGO, 801 F.3d at 490 (The addition of adverbial phrases connoting `means' and `manner,' however, does not serve to transform the nature of the activities themselves. Likewise, the Chief of the Department of Agriculture's Bureau of Biological Survey noted that he ha[s] always had the idea that [passenger pigeons] were destroyed by overhunting, being killed for food and for sport. Protection of Migratory Birds: Hearing on H.R. Response: The proposed rule does not directly affect Natural Resource Damage assessments for accidents that have environmental impacts because statutory authorities that provide the basis for that program do not rely on the MBTA. Interagency review limited to Federal agencies occurred prior to issuance of the proposed rule under procedures required by Executive Order Start Printed Page 114512866 and implemented by the Office of Management and Budget. 2d at 1209. Instead, section 7 requires an agency to analyze the effects of an action on currently listed or proposed-to-be-listed species. The EIS associated with this rulemaking analyzes the broader effects of codifying our interpretation. 2021-00054 Filed 1-5-21; 11:15 am], updated on 4:15 PM on Monday, April 17, 2023, updated on 8:45 AM on Monday, April 17, 2023, 104 documents In its current form, section 2(a) of the MBTA provides in relevant part that, unless permitted by regulations, it is unlawful: at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof. Open for Comment, Economic Sanctions & Foreign Assets Control, Tool Chests and Cabinets From China and Vietnam, Experimental Permits for Reusable Suborbital Rockets, Animal and Plant Health Inspection Service, Medicaid and Children's Health Insurance Program, Prohibition on Use by the United States Government of Commercial Spyware That Poses Risks to National Security, Policy Analysis of Incidental Take Under the MBTA, Regulatory Planning and Review (Executive Orders 12866 and 13563), Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act, Crude Petroleum and Natural Gas Extraction (NAICS 211111), Drilling Oil and Gas Wells (NAICS 213111), Solar Electric Power Generation (NAICS 221114), Other Industries (NAICS 221115, 221121, 221122, and 517312), Compliance with Endangered Species Act Requirements, Government-to-Government Relationship With Tribes, https://www.federalregister.gov/d/2021-00054, MODS: Government Publishing Office metadata, title 50 of the Code of Federal Regulations, https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php, https://beta.regulations.gov/docket/FWS-HQ-MB-2018-0090/document, Crude Petroleum and Natural Gas Extraction, Wireless Telecommunications Carriers (except Satellite). This final rule defines the scope of the MBTA to exclude incidental take, thus incidental take that occurs anywhere within the United States and its territories is not an enforceable violation. The opposite would seem to be true. documents in the last year, 1416 The preamble to this regulation explains the correct context for that language and its relevance to whether the MBTA prohibits incidental take. . (quoting Black's Law Dictionary 1225 (6th ed. 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. . 668a-d, 703-712, 742a-j-l, 1361-1384, 1401-1407, 1531-1543, 3371-3378; 18 U.S.C. The U.S. Supreme Court described this purpose as a national interest of very nearly the first magnitude, and the origin of the statute to implement the international treaties signed for migratory bird conservation must not be overlooked. Likewise, the Federal Government has sought to distinguish holdings in the habitat-destruction context in the Ninth Circuit. Further, as a practical matter, inconsistency and uncertainty are built into the MBTA enforcement regime by virtue of a split between Federal Circuit Courts of Appeals. The action has not been otherwise designated by the Administrator of OIRA as a significant energy action. The commenters noted that a well-designed general permit system will also create efficiencies for industry by removing regulatory uncertainty for developers and investors. See United States v. FMC Corporation, 572 F.2d 902 (2d Cir. 11, 1973)] marked the first case dealing with the issue of incidental take.). Aug. 11, 2020) (dismissing constitutional concerns, but on the basis that the relevant language is unambiguous). However, other actions such as poisoning bait to control birds depredating on crops would kill birds outside the context of hunting. Moon Lake, 45 F. Supp. ), which implements treaties with Canada, Mexico, Japan, and the Russian Federation. 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. Newton County; Seattle Audubon. For example, some Members anticipated application of the MBTA to children who act `through inadvertence' or `through accident.' Using closed waste-water systems or netting of oil pits and ponds. To support an argument that the terms take and kill should be read expansively to include incidental conduct, a number of courts including the NRDC court, as well as the prior M-Opinion, focused on the MBTA's direction that a prohibited act can occur at any time, by any means, in any manner to support the conclusion that the statute prohibits any activity that results in the death of a bird, which would necessarily include incidental take. 85 FR at 5918, February 3, 2020. "In reference to your request for documentation for the removal of an active Osprey nest from the light pole at the soccer field, please be advised that none exist. for Biological Diversity v. Pirie, 191 F. Supp. We respectfully disagree with that court's opinion and have finalized this rulemaking consistent with the Supreme Court's holding in Brand X. The commenters claimed that the rule communicates that for even the most egregious and demonstrably deliberate violations, violators' real-world liability will still be limited by Service funding, investigatory resources and expertise, and political will with respect to enforcement. The Migratory Bird Treaty Act (MBTA), signed into law in 1918, is among the oldest wildlife protection laws on the books. 11 (1917) (statement of E. W. Nelson, Chief Bureau of Biological Survey, Department of Agriculture). Treaty Act and Migratory Bird Conservation Act (16 U.S.C. The President of the United States communicates information on holidays, commemorations, special observances, trade, and policy through Proclamations. To pretend otherwise ignores the agency's own established practices and guidance and constitutes another failure of the Federal Government's trust responsibilities. The Service will take a reasonable amount of time to address and incorporate comments as necessary, deliberate on a final determination, and select an alternative presented in the final EIS. Not all businesses in each sector incidentally take birds. . Because that which belongs to nobody is acquired by the natural law by the person who first possesses it. Federal Register provide legal notice to the public and judicial notice Response: The Service works with offshore-wind-energy companies and Federal and State agencies responsible for regulating this industry. For these reasons, this rule is unlikely to affect a significant number of small entities. The Department should not be putting additional burdens on the public to respond at a time when the public is dealing with a global pandemic. In some cases, these industries have been subject to enforcement actions and prosecutions under the MBTA prior to the issuance of M-37050. See Mahler, 927 F. Supp. The MBTA will continue to operate as Congress intended it to operate. As shown in Table 6, the costs of actions businesses typically implement to reduce effects on birds are small compared to the economic output of business, including small businesses, in these sectors. Rec. Under Alternative A, the Service hereby promulgates a regulation that defines the scope of the MBTA take prohibitions to include only actions directed at migratory birds. Compare Mexico Treaty Act, 49 Stat. Congress and the executive branch understood this fact a century ago when it signed the 1916 treaty and passed the MBTA, even in the midst of World War I. While statutes do not have to be drafted with `mathematical certainty,' they must be drafted with a `reasonable degree of certainty.' Fish & Wildlife Service Toggle navigation Utility (Top) navigation About Us Forward Back About Us Thirteen States (Illinois, Arkansas, Oklahoma, Texas, North Dakota, South Dakota, Nebraska, Montana, Wyoming, Colorado, Utah, New Mexico, and California) have regulations governing the treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. Without a Federal mechanism for incorporating consideration of incidental take of migratory birds into decision-making, it will be much more difficult to make informed decisions that benefit bird populations. . 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. Contrary to the suggestion of the courts in Moon Lake and Apollo Energies that principles of proximate causation can be read into the statute to define and limit the scope of incidental take, the death of birds as a result of activities such as driving, flying, or maintaining buildings with large windows is a direct, reasonably anticipated, and probable consequence of those actions. 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. Accordingly, the guidelines do not provide enforceable legal protections for people and businesses who abide by their terms. Active Control. Response: Project-level information is still recorded when a project proponent engages the Service for technical assistance. Response: We refer the commenter to the EIS and the regulatory impact analysis for our conclusions regarding the environmental and economic impacts of this rulemaking and its reasonable alternatives on migratory birds and regulated entities. Only those businesses choosing to reduce best management practices will accrue benefits. No changes were made to the section of the MBTA at issue here following the later conventions except that the Act was modified to include references to these later agreements. nests, by a bird species protected under the MBTA during previous inspections. The statute makes it unlawful without a waiver to pursue, hunt, take, capture, kill, or sell nearly 1,100 species of birds . 703(a). documents in the last year, 998 By contrast, the verbs kill and take are ambiguous in that they could refer to active or passive conduct, depending on the context. & Constr. Government-to-government consultation is one facet of effectuation of the trust responsibility. This letter explained that birds provide tremendous value to our communities. The majority of Minnesota's birds are protected by the federal Migratory Bird Treaty Act of 1918 (MBTA), which prohibits the take of birds, their nests, and/or their eggs, whether intentional or unintentional. 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. Table 3Crude Petroleum and Natural Gas Extraction NAICS 21111: Employment Sizes and Sales1. No organizations or persons outside of the Federal Government were given an advance copy of the proposed rule to read before it was published in the Federal Register. 703-712): prohibits the take or attempt to take any parts of a migratory bird, including its nest, eggs, or young. If these species are known to occur in the area, before destroying a nest of this type we recommend consulting with an expert who can help determine whether adults, eggs, or chicks are present. Here, an attempt to impose liability for acts that are not directed at migratory birds raises just such constitutional concerns. These distinctions are inherent in the nature of the word `taking' and reveal the strict liability argument as a non-sequitur. 801 F.3d at 493. .' The rule of lenity requires ambiguous criminal laws to be Start Printed Page 1156interpreted in favor of the defendants subjected to them. Comment: One commenter stated that in an international forum the United States agreed that the MBTA is a strict-liability statute covering incidental take. in the Senate, Leaders in Recent Successful Fight for the Migratory Bird Treaty Act, BulletinThe American Game Protective Association, July 1918, at 5, explained: Nobody is trying to do anything here except to keep pothunters from killing game out of season, ruining the eggs of nesting birds, and ruining the country by it. The commenters noted that the Executive Order defines take consistent with the Service's general definition applicable to all wildlife statutes in 50 CFR 10.12. 2509 (2002), reprinted in 16 U.S.C.A. This type of uncertainty is problematic under the Supreme Court's due process jurisprudence. . The component actions of take involve direct actions to reduce animals to human control. ), we have determined the following: a. Regarding the comments from the Government of Canada, the Service identified the impacts to migratory birds to the extent it was able in the final EIS, based on the information available. At the very least, the Department should not be providing the minimum comment period. Birds that nest on the ground in sandy or rocky areas are particularly difficult to see and identify, as are birds that nest in trees cavities or holes in the ground. We will not hold entities accountable for take that does not violate the MBTA. 2015); Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. When Congress did attempt to assert a degree of Federal jurisdiction over wild game with the 1913 Weeks-McLean Law, it was met with mixed results in the courts, leaving the question pending before the Supreme Court at the time of the MBTA's enactment. documents in the last year, 825 Nest removal permits are usually only issued when the particular nest is causing a human health or safety concern or the birds are in immediate danger. Table 2Finfish NAICS 14111: Employment Sizes and Payroll1. This rulemaking may violate federalism rules, as States will be required to use their budgets to implement migratory bird protection actions, including regulation development and permit systems. Comment: One commenter suggested that in some cases incidental take by industry should be considered purposeful since some of this mortality is well studied, predictable, and there are easy low-cost mitigation options available to reduce these takes. NEPA also requires Federal entities to assess potential mitigation of unavoidable adverse environmental impacts, which may include analysis of project design or mitigation measures that reduce potential impacts to migratory birds. This rulemaking will not significantly affect the Service's obligations under other legal statutes that protect migratory birds. Comment: One commenter suggested that the proposed rule should be abandoned because the meanings of take and kill need to be given broad interpretations to achieve the remedial purpose of protecting wildlife and remain consistent with the common law definitions of these terms. Many other factors are often at play for companies engaged in actions that may affect migratory birds, including public perception, green business credentials, economic factors, State law, and pressure from investors and lenders. The States own and hold migratory birds in trust for their citizenry. Often, monitoring of industrial projects is not conducted, and when it is, the Service rarely gets reports of the findings. The commenter is essentially proposing adopting an extra-hazardous activity requirement as a proxy for negligence or gross negligence. Response: This rulemaking is based on the Department's interpretation of ambiguous language in a statute the Secretary is charged with implementing and does not amend the language of the MBTA. The Service is a conservation organization and will continue to address bird-conservation priorities in a manner that provides for the most effective conservation of protected species, such as working with domestic and international partners to conserve habitat and habitat connectivity, addressing threats both anthropogenic and natural, developing partnerships with Federal, State, and Tribal agencies, industry and NGOs that address the greatest conservation needs, and effectively implementing the array of Federal statutes that provide protections for migratory birds. electronic version on GPOs govinfo.gov. Pursue means [t]o follow with a view to overtake; to follow eagerly, or with haste; to chase. Webster's Revised Unabridged Dictionary 1166 (1913); Hunt means [t]o search for or follow after, as game or wild animals; to chase; to pursue for the purpose of catching or killing., Capture means [t]o seize or take possession of by force, surprise, or stratagem; to overcome and hold; to secure by effort., Habitat destruction, described generally as the extension of agriculture, and particularly the draining on a large scale of swamps and meadows; and, Hunting, described in terms of improved firearms and a vast increase in the number of sportsmen.. at 745 (dismissing charges against a farmer who applied pesticides to his fields that killed a flock of geese, reasoning [f]armers have a right to know what conduct of theirs is criminal, especially where that conduct consists of common farming practices carried on for many years in the community. For example, the removal of active nests when the purpose of the underlying activity is not to harm birds but related to another activity, such as construction or cleaning, has created confusion and a major loophole. Comment: A few commenters stated that the Department of the Interior's reinterpretation of the MBTA removed a broad layer of protection to birds against industrial harms and requested that the Service explain in the preamble how such action compounds or alleviates the findings of certain reports and other available science and biological dataincluding but not limited to data from Partners in Flight, the State of the Birds report, Christmas Bird Counts, Breeding Bird Surveys, and project-level nesting and demographic information that the Service has on file. Use the PDF linked in the document sidebar for the official electronic format. Whether the Federal Government had any authority to regulate the killing or taking of any wild animal was an open question in 1918. 605(b). Ind. Alternatively, Congress could have amended the MBTA itself to clarify that it did not apply to incidental takes and kills. The Migratory Bird Treaty Act (MBTA; 16 U.S.C. While the term kill can certainly be interpreted broadly in a general sense, we disagree that kill should take on its most expansive meaning in the context of section 2 of the MBTA. . Natural Res. The proposed rule would largely make the statute inoperable, thus violating its congressional intent by removing its purpose. from 35 agencies. The Service provided alternatives to the proposed action and has not predetermined any outcome of the NEPA process. See Convention between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, 50 Stat. 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