migratory bird treaty act nest removalmigratory bird treaty act nest removal

We disagree that this rulemaking will have a substantial impact on migratory bird populations when compared to prior agency practice. See Canada Convention, 39 Stat. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y. In reaching this result, the Court squarely rejected the argument that the Court's reading of the statute's expansive terms ignore[d] the legislature's purpose in enacting Title VII and that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. Id. Learn about best management practices to protect birds and their nests when working on City projects. informational resource until the Administrative Committee of the Federal The commenter called for the Office of Information and Regulatory Affairs to review the justification for consistency with these Executive Orders. the state without cooperative management or removal of . The Supreme Court has recognized that [a] fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). The Service will continue to ensure that migratory birds are protected from direct take. structure In this Issue, Documents 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. This rule effectively removes that directive. 2010) (concluding that under an incidental take interpretation, [t]he actions criminalized by the MBTA may be legion, but they are not vague). Table 4 shows the distribution of businesses by employment size and sales. The commenter noted that in 1999, several environmental groups from Mexico, Canada, and the United States filed a submission under the North American Agreement on Environmental Cooperation asserting that the United States was failing to enforce environmental laws, including the MBTA. For example, 13 States have oil pit covering requirements. Response: The Service announced the scoping process in a notice of intent (NOI) to complete an EIS in the Federal Register on February 3, 2020 (85 FR 5913). We received Start Printed Page 1165requests from nine federally recognized Tribes and two Tribal councils for government-to-government consultation. . We conducted the NEPA analysis at the appropriate time to analyze the environmental effects of this rulemaking to codify that interpretation. The replacement timeline for netting is also variable because hurricanes, strong winds, and strong sun all have deleterious impacts on nets. Rec. 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 rule should be reissued in proposed form, allowing the public to weigh in on the alternatives and on the Service's choice. This rule is an E.O. 7446 (1918) (statement of Rep. Stevenson)). (1) You may humanely remove a trapped migratory bird from the interior of a residence or a commercial or government building without a Federal permit if the migratory bird: (i) Poses a health threat (for example, through damage to foodstuffs); This analysis examines the potential effect of the rule on small businesses in selected industries. These species are protected under the Migratory Bird Treaty Act (1918) based on their international importance. Further, the subsequent publication and comment period on the draft EIS was after-the-fact, indicating a decision was already made regardless of the environmental consequences determined in the EIS. . This analysis first estimates the number of businesses impacted and then estimates the economic impact of the rule. This rulemaking will not disturb that case law or change our enforcement of the statute in that context. The environmental consequences of the underlying sweeping policy change, which occurred in M-Opinion 37050, have yet to be held up to the mandates of NEPA. 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. 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. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Comment: Members of the U.S. Senate commented that the Department closed the comment period on the proposed rule in mid-March during the height of a pandemic, ignoring requests from some in Congress to extend the comment deadline, and without even responding to Congress until after the deadline ended. 701-715) and section 8A(e) of the Endangered Species . However, the Service will continue to work with any industry or entity that is interested in voluntarily reducing their impacts on migratory birds to identify best practices that could reduce impacts. The scope of prohibited conduct covers actions, which require intentpursue, hunt, and capture are all actions directed at wildlife and cannot be performed by accident. The term extrahazardous activities is not found anywhere in the statute and is not defined by either the court or the Service. Collisions with wind turbines, which kill an estimated 234 thousand birds per year. "Take" is defined in Section 86 of the California Fish and Game Code as "to hunt, pursue, catch, With effective protection, the drafters wanted to be able to revive and sustain completely decimated populations on behalf of the Americans who recognized aesthetic, economic, and recreational value in sustaining migratory bird populations. The history of the MBTA and the debate surrounding its adoption illustrate that the Act was part of Congress's efforts to regulate the hunting of migratory birds in direct response to the extreme over-hunting, largely for commercial purposes, that had occurred over the years. Comment: One commenter in support of the proposed rule noted that there are other statutes that protect birds, including NEPA; industry would still have to comply with some of these laws and thus birds would benefit. 2015) (Even if `kill' does have independent meaning [from `take'], the Supreme Court, interpreting a similar list in the [Endangered Species Act], concluded that the terms pursue, hunt, shoot, wound, kill, trap, capture, and collect, generally refer to deliberate actions); cf. . First, in 1918, Congress adopted the MBTA to address the direct and intentional killing of migratory birds; Second, in 1929, Congress adopted the Migratory Bird Conservation Act to more effectively implement the Migratory Bird Treaty by protecting certain migratory bird habitats. This approach compromised the ability of commenters reviewing the proposed rule to understand fully the effects of the rule. Fish and Wildlife Service, Land-Based Wind Energy Guidelines 6 (Mar. on The Service determines the relevant language in section 2 to be ambiguous, which is consistent with the views of most Federal courts. The fact that no permit program has ever existed for incidental take demonstrates established precedent. Some nests are hard to see and identify, making them more vulnerable to inadvertent destruction. Following the Wind Energy Guidelines has become industry best practice and would likely continue. As the Fifth Circuit explained, [a] single carve-out from the law cannot mean that the entire coverage of the MBTA was implicitly and hugely expanded. CITGO, 801 F.3d at 491. Implementing legislation for the treaty with the Soviet Union also did not amend section 2. Comment: One State expressed concern with the Service's attempt to alter its previous interpretation of the MBTA (M-37041) in the absence of review pursuant to NEPA. at 1754. Federal regulation of hunting was also legally tenuous at that time. However, that argument was rejected by a subsequent district court. The Department appears to be rushing through this entire process to meet an arbitrary timeline. 804(2)). This approach effectively leaves otherwise lawful and often necessary businesses to take their chances and hope they avoid prosecution, not because their conduct is or even can be in strict compliance with the law, but because the government has chosen to forgo prosecution. 13186 remains in place and is a valuable tool for Federal agencies to work cooperatively to implement bird conservation strategies within their agency missions. This rule does not affect the prohibitions under the ESA, and thus species listed under that statute would continue to be covered by all the protections accorded listed species under the ESA. 2015), which held that the MBTA does not prohibit incidental take. It is not part of the official APA rulemaking process or docket and plays no part in the agency's ultimate decision. There is nothing in this legislation that authorizes the government to pursue incidental takings charges in other contexts. The Service must explain how the proposed rule meets and affects its own responsibilities and those of other Federal agencies under this Executive Order. The Tenth Circuit in Apollo Energies took a similar approach, holding the MBTA requires a defendant to proximately cause the statute's violation for the statute to pass constitutional muster and quoting from Black's Law Dictionary to define proximate cause. Apollo Energies, 611 F.3d at 690. Comment: Multiple commenters stated that the proposed rule is likely to facilitate a substantial increase in the number of migratory birds killed, in direct conflict with the amended treaty with Canada. Rec. Use the PDF linked in the document sidebar for the official electronic format. 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. Comment: One commenter suggested amending the proposed regulatory Start Printed Page 1147language by adding: provided that the person, association, partnership, or corporation takes reasonably practicable precautionary measures to prevent the taking or killing of migratory birds. Dictionary definitions of the term take at the time of MBTA enactment were consistent with this historical use in the context of hunting and capturing wildlife. 703 et seq. . under the Bald and Golden Eagle Protection . Response: We note that a primary purpose of codifying the interpretation presented in M-37050 is to provide more certainty and permanence regarding the Department's position on the scope of the MBTA as it relates to incidental take. Rather than strict liability, the MBTA would apply a negligence standard to hunters who used fields with loose grain. The text and purpose of the MBTA indicate that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same only criminalize actions that are specifically directed at migratory birds, their nests, or their eggs.Start Printed Page 1135. E.O. You will be directed to the following website in 5 seconds: We hope your visit was informative and enjoyable. Other factors entities consider include public perception, status as a green company, size of company, cost of implementation, perceived risk of killing migratory birds, or availability of standard industry practices. The opposite would seem to be true. 7455 (1918) (statement of Rep. Mondell)). Given the success of the MBTA to date, the commenter felt the proposed action was unnecessary. There are also State and local laws that would prevent the unnecessary killing of birds. In all three categories, the Service is presently ill suited to fulfill the role envisioned by the proposed rule. These entirely foreseeable effects of the action proposed by the Service must be analyzed in formal section 7 consultation under the ESA. On August 11, 2020, a district court vacated M-37050, holding that the language of the MBTA plainly prohibits incidental take, despite multiple courts failing to agree on how to interpret the relevant statutory language. 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. It further states [e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . at 1749 (citation omitted). Pa. 1997). at 1081 (quoting 56 Cong. Every effort shall be made by the Contractor not to disturb any nests with eggs or young. However, States may decide to expend resources for conservation and recovery of these species due to this rulemaking. The Service notes that a Federal regulation applies across all agencies of the Federal Government and provides a more permanent standard that the public and regulated entities can rely on for the foreseeable future, in contrast to continued implementation of the MBTA under a legal opinion. As Table 6 shows, oil pit nets range in cost from about $131,000 to $174,000 per acre, where most netted pits are about 1/4 to 1/2 acre. 20 Destruction and Relocation of Migratory Bird Nest Contents (June 14, 2018). 703(a). Comment: Several commenters suggested that the proposed rule paints a broad brush over incidental takes, treating all equally and absolving even grossly negligent behavior that can result in the large-scale death of birds. Response: The Service's implementation of the Fish and Wildlife Conservation Act is not directly relevant to this rulemaking. Over 100 years of case law and amendments to the statute have provided extensive guidance on the requirements to prove intent under the criminal provisions of the MBTA. No data available on how many measures are employed on each vessel. There is no requirement under the Administrative Procedure Act (APA) to consider alternatives in the proposed rule itself (Executive Order 12866 requires consideration of alternatives that would have less economic impact on regulated entities for economically significant rulemakings, as set forth in the regulatory impact analysis made available for review with the proposed rule). Thus, in our view, the M-Opinion was neither final agency action nor major Federal action. Under the proposed rule, the Service will continue to work with and encourage the voluntary implementation of BMPs when the entity seeks to reduce their project-related impacts. The Service is the Federal agency delegated the primary responsibility for managing migratory birds. . 1501 et seq. The commenters noted that Congress could have clarified any objection to the enforcement of incidental take but did not. The authority to implement a statute necessarily comes with it the authority both to interpret ambiguous language in that statute and to correct a prior improper interpretation of that language. The Supreme Court's result and reasoning are impossible to square with a central justification for the proposed rule and M-Opinion 37050 on which it is based. The authority to implement a statute necessarily comes with it the authority either to interpret ambiguous language in that statute or to correct a prior improper interpretation of that statute. 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. Interior's elimination of longstanding Federal protection harms State interests. The commenter noted that the current administration is relaxing a number of regulations such as the Clean Water Act and the Endangered Species Act. Its provisions protect non-game and insectivorous birds that are notand have never beenintentionally pursued for game, poaching, or trafficking. The Service completed these consultations prior to publication of this final rule. We explain the meaning of the terms take and kill in the context of section 2 in turn below. The clause proposed by the commenter would be inconsistent with our interpretation of the Act and would essentially add a requirement to the MBTA. To impose a limit on the activities it could regulate under the MBTA would be to ossify this Start Printed Page 1146broadly written protection into only applying to activities that existed during the decade immediately following its passage. at 374, 375 (citation omitted). The Service proposed to codify the interpretation set forth in Solicitor's Opinion M-37050 and presented reasonable alternatives to that proposal in the associated draft EIS. Response: The EIS associated with this rulemaking analyzes the difference between adopting an interpretation of the MBTA that excludes incidental take and the prior interpretation that the MBTA prohibits incidental take. 1311, and Agreement Supplementing the Agreement of February 7, 1936, U.S.-Mex., Mar. Our authority derives from the Migratory Bird Treaty Act of 1918, as amended (MBTA; 16 U.S.C. E.O. The Service provided alternatives to the proposed action and has not predetermined any outcome of the NEPA process. See Convention between the Government of the United States and the Government of Japan for the Protection of Migratory birds and Birds in Danger of Extinction, and their Environment, 25 U.S.T. For these reasons, this rule is unlikely to affect a significant number of small entities. This prototype edition of the 65-243, at 2 (1918) (letter from Secretary of State Robert Lansing to the President)). The Service has provided three opportunities to submit comments through the scoping notice, the proposed rulemaking, and the publication of the draft EIS. 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. The status of migratory bird populations in the areas described by the commenter may be relevant in our decision to permit take under the Service's current permit system. A few commenters noted that their industry sectors will continue to work with Federal and State agencies and help them fulfill their mission to conserve, protect, and enhance wildlife and their habitat for the continuing benefit of all people. documents in the last year, 29 See, e.g., U.S. The meaning of written instruments does not alter. Immediately notify the district environmental coordinator and NRM. Comment: The same commenter also noted that the recent Supreme Court ruling in Dep't of Homeland Security v. Regents of the University of California, 207 L. Ed. For example, the Service will continue to work with any partner that is interested in reducing their impacts on birds by developing voluntary practices to reduce mortality and providing technical assistance for effectively implementing those practices. If not, where does the Service anticipate such needed funds will originate? Meridian also located numerous nests . The remaining States represent approximately 32 percent of businesses in the crude petroleum and natural gas extraction industry. Any ambiguity inherent in the statute's use of the terms take and kill is resolved by applying established rules of statutory construction. . Service analysis indicates that the top threats to birds are: U.S. 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. Thus, [a] conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained `fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.' . 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. Something temporarily or permanently constructed, built, or placed; and constructed of natural or manufactured parts including, but not limited to, a building, shed, cabin, porch, bridge, walkway, stair steps, sign, landing, platform, dock, rack, fence, telecommunication device, antennae, fish cleaning table, satellite dish/mount, or well head. The prior Solicitor's Opinion, M-37041, took a different tack from the NRDC court and assumed that because the criminal misdemeanor provision of the MBTA is a strict-liability crime, meaning that no mens rea or criminal intent is required for a violation to have taken place, any act that takes or kills a bird must be covered as long as the act Start Printed Page 1137results in the death of a bird. This approach has long-term financial benefit as it focuses on prevention rather than reparations in the future. This rulemaking will not affect those investigations. The preamble to the proposed rule and this final rule provides a detailed analysis of the language of the statute and why the scope of the MBTA does not include incidental take, including the best reading of the ambiguous terms take and kill. We refer the commenter to that analysis, which provides the basis for issuing this regulation. Comment: Multiple commenters opposed the proposed action because recent studies have demonstrated that North American bird populations are facing significant population declines. 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. Another example are ground cavity-nesting species, such as burrowing owl or bank swallow. 1555, Sec. Table 4Drilling Oil and Gas Wells NAICS 213111: Employment Sizes and Sales1. In the Service's evaluation of those impacts, it is critical to compare the proposed rule's impacts with the prior interpretation of the MBTA represented in M-37041, which concluded that the MBTA prohibits incidental take. 2d at 1081 (quoting 56 Cong. The NEPA process informed our decision-making process culminating in this final rule. However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. publication in the future. Closed wastewater systems typically used for reasons other than bird mitigation. The commenter noted that as the Courts have advised, where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. The commenter claimed the Service appears concerned that strict liability for incidental takes of migratory birds does not provide adequate notice of what constitutes a violation and would lead to absurd results. 3 with 16 U.S.C. Response: The proposed rule does not alter the burden of proof for intentional take under the MBTA. Since the Service does not have a permitting system authorizing incidental take of migratory birds, the Service does not have specific information regarding how many businesses in each sector implement Start Printed Page 1160measures to reduce incidental take of birds. The commenters stated that, to proceed in any defensible fashion, the agency must reckon with the consequence of adopting M-Opinion 37050 in the first place. Some States have statutes with procedural requirements similar to those found in NEPA (e.g., California Environmental Quality Act) and a variety of provisions regulating some form of incidental, indirect, or accidental take, or potentially allowing commissions or agencies to make applicable rules. The commenter questions what economic progress has been halted due to the protections of the MBTA and how this action is in the best interest of the American people. In the absence of national protection against incidental take, each State may seek to enforce or embolden existing State rules, thereby creating additional regulatory uncertainty for industry. The Service will continue to investigate instances of unauthorized taking or killing directed at migratory birds. Response: The procedures followed in this rulemaking process were appropriate and lawful. . In this case, the Service appears at the scoping phase to have already selected the outcome it intended to reach. 1536(a)(2). Comment: Multiple commenters noted that the codification of the Solicitor's M-Opinion 37050 is premature as it has not been fully vetted or withstood legal challenges. In addition, commenters noted that the 45-day comment period was inadequate for a rule that proposes to substantially change decades of conservation policy and hinder bird conservation in the United States, given the current National State of Emergency in response to the novel Covid-19 coronavirus. Response: Given our interpretation of the MBTA, the commenter's proposal is not a viable option. The Migratory Bird Treaty Act of 1918 (MBTA), codified at 16 U.S.C. 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. In rural areas, vultures have been known to predate young or vulnerable livestock, which is of great concern . If the MBTA was originally understood to protect migratory bird habitats from incidental destruction, enactment of the Migratory Bird Conservation Act 11 years later would have been largely superfluous. The proposed rulemaking extends that practice to the MBTA. On January 7, the Service published a final rule defining the scope of the MBTA such that an incidental bird take resulting from an otherwise lawful activity, for . Response: The Service takes its Tribal trust responsibilities seriously and completed government-to-government consultation when requested. This rule may reduce the incentive for affected parties to implement these guidelines. Rather, it should extend that comment period by 45 days or more. 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. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). documents in the last year, 124 Smith v. Goguen, 415 U.S. 566, 572-73 (1974). Specifically, an agency shall commence preparation of an [EIS] as close as possible to the time the agency is developing or is presented with a proposal. The DOI should suspend M-Opinion 37050 while the Service considers the environmental impacts as required by NEPA. Response: It is appropriate for individual States to determine whether and how to regulate incidental take of migratory birds, given that the MBTA does not prohibit incidental take. The Service's approach to incidental take prior to 2017 was implemented without public input and has resulted in regulatory uncertainty and Start Printed Page 1142inconsistency. and 25% are designated (in whole or in part) as Birds of Conservation Concern (BCC).). Many other Federal statutes include provisions that require implementing agencies to assess and mitigate potential environmental impacts, including impacts to migratory birds and their habitat. The commenters noted that despite efforts to prevent incidental take, such take is not one-hundred-percent preventable and criminalizing incidental take does not advance conservation efforts. It is usually required that you wait for the nest to become inactive (contains no eggs or chicks and is no longer being used by birds for breeding) before destroying it. Whether Congress deliberately avoided more broadly changing the MBTA or simply chose to Start Printed Page 1140address a discrete problem, the most that can be said is that Congress did no more than the plain text of the amendment means. Id. Migratory Bird Treaty Act (16 U.S.C. Based upon the text, history, and purpose of the MBTA, and consistent with decisions in the Courts of Appeals for the Fifth, Eighth, and Ninth circuits, there is an alternative interpretation that avoids these concerns. The Service received many responses during the public comment period for the proposed rule from migratory bird experts and interested non-governmental organizations. A small government agency plan is not required. The commenters noted that the proposed rule was published with a notice of intent to prepare an EIS but without any concurrent environmental analysis of alternatives. As a matter of both law and policy, the Service hereby adopts the conclusion of M-37050 in a regulation defining the scope of the MBTA. 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. [n]o regulations have been issued to create a permit scheme to authorize incidental take, so most potential violators have no formal mechanism to ensure that their actions comply with the law. 85 FR at 5922. Outcome of the terms take and kill in the future the Contractor not to disturb any nests with or. Statements of Energy effects when undertaking certain actions incidental takings charges in other contexts that for! Replacement timeline for netting is also variable because hurricanes, strong winds, and Agreement Supplementing the Agreement February... The statute 's use of the rule prior agency practice to meet an arbitrary timeline, where does Service! 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