. You will be directed to the following website in 5 seconds: We hope your visit was informative and enjoyable. 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. We explain the meaning of the terms take and kill in the context of section 2 in turn below. The Land-based Wind Energy Guidelines are a voluntary approach to siting wind-energy facilities. The announcement was not considered in developing this final rule. Subsequently, the Service has sought to limit the potential reach of MBTA liability by pursuing enforcement proceedings only against persons who fail to take what the Service considers reasonable precautions against foreseeable risks. . On February 3, 2020, the Service published in the Federal Register (85 FR 5915) a proposed rule to define the scope of the MBTA as it applies to conduct resulting in the injury or death of migratory birds protected by the Act. 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. Response: The Service agrees with this comment. the Federal Register. We note that on August 11, 2020, a district court vacated M-37050 and held that the plain language of the MBTA prohibits incidental take. 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. In fact, agencies may codify interpretations struck down by courts and have subsequent courts defer to and uphold the later rulemaking. Regulations allowing the take of migratory birds are authorized by the Migratory Bird Treaty Act (Act; 16 U.S.C. Rather than strict liability, the MBTA would apply a negligence standard to hunters who used fields with loose grain. . It was not until more than 50 years after the initial adoption of the MBTA and 25 years after the Mexico Treaty Act that Federal prosecutors began applying the MBTA to incidental actions. documents in the last year, 124 13186 was not designed to implement the MBTA per se, but rather was intended to govern Federal efforts to conserve migratory birds more broadly. Neotropical Migratory Birds are defined as species whose breeding area includes the North American temperate zones and that migrate in many cases south of the continental United States during nonbreeding seasons (Hunter et al 1993). This rule will not create substantial direct effects or compliance costs on State and local governments or preempt State law. documents in the last year, 18 The Service will continue to work to provide recommendations for voluntary measures and siting locations based on sound science. Comment: One commenter requested that the Service remember their treaty obligation to protect birds that are shared with other countries that as independent nations could not ensure the protection of species that migrate across borders. Within the EIS, the Service analyzed impacts of the no action alternative and two additional alternatives on (1) The overall effect of each alternative on migratory bird populations, (2) the effect of any decrease in migratory bird populations on ecosystem services, (3) the potential effects of climate change in combination of each alternative, and (4) the impacts to industry and small business that may profit from migratory birds. The commenter contended that entities that choose not to implement known measures are purposefully taking migratory birds. at 1581 (Many other statutes enacted in the intervening years also counsel against reading the MBTA to prohibit any and all migratory bird deaths resulting from logging activities in national forests. Rather, the guidelines are explicit that the Service may only consider full compliance in exercising its discretion whether to refer an individual or company to the Department of Justice for prosecution. The opposite would seem to be true. Interpreting the MBTA to criminalize incidental takings raises potential due process concerns. For instance, the manner and means of hunting may differ from bow hunting to rifles, shotguns, and air rifles, but hunting is still a deliberately conducted activity. Also included are migratory birds and other species protected by state rules. This site displays a prototype of a Web 2.0 version of the daily Its provisions protect non-game and insectivorous birds that are notand have never beenintentionally pursued for game, poaching, or trafficking. 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 rule also presents a false choice between regulatory certainty and implementing the MBTA. New projects can vary from 100 to 5,000 acres in size, and mortality surveys may not scale linearly. 237). 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. Comment: One commenter noted that the recent Supreme Court ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), does not support this rulemaking. The Service received many responses during the public comment period for the proposed rule from migratory bird experts and interested non-governmental organizations. Response: Our interpretation of the MBTA concludes that the statute does not prohibit incidental take, including any resulting from wind-energy facilities. . The U.S. [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. An analysis of the amount of funding available for mitigation of environmental damage, including incidental take of migratory birds, would be largely speculative at this point and not directly relevant to this rulemaking. Comment: One commenter stated that it is notable that no additional alternatives were in the proposed rule. The Service will continue to implement the full suite of regulations authorizing conduct directed at migratory birds. 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. Response: Per the National Environmental Policy Act (NEPA), the Service analyzed the impacts mentioned by the commenter within the draft Environmental Impact Statement (EIS) published June 5, 2020. . Nor do the owners of electrical lines `take' migratory birds who run into them. These tools are designed to help you understand the official document 2. 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 . . Comment: One commenter stated that the removal of Federal authority to regulate incidental take of migratory birds could strongly affect offshore-wind siting and management decisions. Response: This proposal does not authorize the taking of migratory birds; it defines the scope for when authorizations under section 703 are necessary and appropriate. 1531 et seq.) Newton County; Seattle Audubon. Completing the entire NEPA process and reaching a final record of decision (ROD) and final rule by fall of 2020 is an extraordinarily short timeline of less than 10 months to proceed from initial scoping to final rule. Only Congress can enact or amend statutory language. As such, they reinforce[] the dictionary definition, and confirm[] that `take' does not refer to accidental activity or the unintended results of passive conduct. Brigham Oil & Gas, 840 F. Supp. Comment: The plain language of this statute pertains to conduct directed at species, and nowhere in the operative language does the law suggest an intent on the part of Congress to impose criminal liability for the incidental effects of otherwise lawful activities. If you are using public inspection listings for legal research, you As a biological monitor, I presented environmental trainings, conducted pre-activity surveys, conducted BMP inspections, conducted migratory bird surveys, monitored construction within critical . To a certain extent, some degree of short-term uncertainty is to be expected when a change in agency practice occurs. 252 U.S. 416, 432-33 (1920). Even if the terms were ambiguous, the proposed rule's attempt to meld all the prohibited conduct into a singular meaning is unsupported by any canon of statutory interpretation. We disagree with the commenter's interpretation of the MBTA and our nondiscretionary and discretionary duties to implement the MBTA. To the contrary, there are several situations where kill retains independent meaning. establishing the XML-based Federal Register as an ACFR-sanctioned 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. Comment: A commenter noted that the proposed rule fails to provide adequate justification under Executive Orders 12866 and 13563 with regard to providing flexible approaches consistent with scientific integrity and protecting the environment. Since then, some of the Nation's governors, State legislatures, and mayors jointly requested a suspension of public comment periods Start Printed Page 1144during this national emergency. Ark. The commenter notes there is little mention in either notice of biological impacts or assessment of bird species protected by the Act. Because no take has occurred within the meaning of the MBTA, the strict-liability provisions of the Act would not be triggered. 105-26 (May 5, 1997) (authorizing indigenous groups to harvest migratory birds and eggs throughout the year for subsistence purposes). 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. 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. This conclusion is also supported by the Service's longstanding implementing regulations, which define take to mean to pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to do the same. That does not mean, however, that Congress intended for strict liability to apply to all forms of human activity, such as cutting a tree, mowing a hayfield, or flying a plane. 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. Executive Order 13563 reaffirms the principles of E.O. Comment: Multiple commenters noted that the proposed action removes all incentives for industry to work with the Service. OIRA has determined that this rule is significant. 3329 (Mar. 20080 Before the House Comm. 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. WHAT TOWER OPERATORS CAN DO TO PROTECT RAPTORS AND NESTS ON TOWERS We will continue to work with any entity that seeks to reduce their impacts to migratory birds to achieve conservation outcomes. However, in lieu of an initial or final regulatory flexibility analysis (IRFA or FRFA) the head of an agency may certify on a factual basis that the rule would not have a significant economic impact on a substantial number of small entities. The Service will continue to manage and enforce the provisions of the MBTA as they relate to activities directed at migratory birds, including ensuring those holding take permits are accountable for complying with these permits. The Service is the Federal agency delegated the primary responsibility for managing migratory birds. The following text presents the substantive comments we received and responses to them. The Public Inspection page may also The commenter stated that the proposed rule does not facilitate the Service's only authorized action under the statute, which is the authority to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, etc., of such birds, or any part, nest, or egg thereof. 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 for Biological Diversity v. England, 2003 App. Comment: One commenter stated that the proposed rule is not consistent with section 2(a) of the Migratory Bird Treaty Act, which states that it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill . Therefore, we do not regard our current approach to be inconsistent with the 2008 diplomatic exchange. 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. 1577-78 (listing a litany of scenarios where normal everyday actions could potentially and incidentally lead to the death of a single bird or breaking of an egg in a nest)). Response: The exchange of diplomatic notes the commenter references occurred in 2008 and did not amount to an agreement that prohibiting incidental take was required by the Convention. Justice Gorsuch in Bostock was quite clear that legislative intent is only irrelevant if the language of the statute is plain, as he found the applicable language of the Civil Rights Act to be. Add 10.14 to subpart B to read as follows: The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. . Response: The Service does not agree that the MBTA is the only mechanism to achieve bird conservation. . About the Federal Register Comment: Multiple commenters supported the proposal because, in their view, criminalizing incidental take does not advance conservation and other mechanisms could be used to protect birds. Owing to the diversity in operations of the various industries affected by this rule, USFW shall develop industry specific guidelines for developing precautionary measures to prevent the taking or killing of migratory birds.. the material on FederalRegister.gov is accurately displayed, consistent with Quoting Black's Law Dictionary, the court defines proximate cause as that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. Id. E.O. 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. 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. 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. One of the alternatives reverts to the prior interpretation of the MBTA described in Solicitor's Opinion M-37041. Protection of Migratory Birds: Hearing on H.R. It is simply one tool in what must be a multifaceted approach. 2002), vacated on other grounds sub nom. Articles II through IV of the Convention create closed periods during which hunting of migratory species covered by the Convention may be authorized only for limited purposes, such as scientific use Start Printed Page 1139or propagation. Moreover, the M-Opinion, which provided the original basis for this rulemaking, has been publicly available for more than 2 years. State partners are critical to the conservation of migratory birds, and we encourage States to continue to conserve and manage migratory bird species consistent with the MBTA and would be happy to engage with and assist our State partners in their management and conservation of MBTA species. The Service will continue to work with partners to address migratory bird declines outside of a regulatory context. Thus, in our view, the M-Opinion was neither final agency action nor major Federal action. Comment: Multiple commenters noted that the process being used for this rulemaking is unconventional. on Foreign Affairs, 64th Cong. The commenter stated that this ruling and analysis further undermine the Service's justification for reversing course on many decades of prior policy and practice in implementing the MBTA. For the selected industries, we do not provide further analysis because minimal effects are expected on small businesses relative to an environmental baseline based on current regulations and voluntary conservation measures, due to the fact that mitigation costs are small relative to the cost of projects (see Table 7). Since the Small Business Size Standard is less than 1,000 employees, we assume all businesses are small. We solicited public comments on the proposed rule for 45 days, ending on March 19, 2020. 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. By contrast, Courts of Appeals in the Fifth, Eighth, and Ninth Circuits, as well as district courts in the Third and Seventh Circuits, have indicated that it does not. Response: This approach would be very similar to establishing a policy to decline enforcement except in cases of gross negligence. 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. Fish and Wildlife Service (FWS, Service, we), define the scope of the Migratory Bird Treaty Act (MBTA or Act) as it applies to conduct resulting in the injury or death of migratory birds protected by the Act. Simply stating that the Service has used the best available science is not sufficient. The Service is partner to multiple efforts to track migratory bird populations (e.g., Partners in Flight Landbird Plan, Avian Conservation Assessment Database, etc.). 6113, 6128). 2509 (2002), reprinted in 16 U.S.C.A. However, if the nest is abandoned or no . Otherwise-lawful economic activity should not be functionally dependent upon the ad hoc exercise of enforcement discretion. M-37050 thoroughly examined the text, history, and purpose of the MBTA and concluded that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions that are directed at migratory birds, their nests, or their eggs. Rather, it should extend that comment period by 45 days or more. Because House Sparrows and European Starlings are exotic species, they are not protected by the Migratory Bird Treaty Act. 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. As the U.S. Supreme Court recognized 100 years ago, State-level protections are insufficient to protect transient species that travel outside of a State's territorial bounds. Ind. The commenters noted that such deleterious effects are a more than sufficient basis to withdraw the proposed rule (and the underlying Opinion). The Service determines the relevant language in section 2 to be ambiguous, which is consistent with the views of most Federal courts. The Service has conducted a cost-benefit analysis which can be viewed online at https://beta.regulations.gov/docket/FWS-HQ-MB-2018-0090/document and https://www.fws.gov/regulations/mbta/. The commenters noted that through judicious enforcement and by working directly with industries to develop and implement best management practices, the MBTA has provided a key incentive for adopting common-sense practices that protect birds. 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. Numerous technical reports including the 2019 Science paper have highlighted the declines in many habitat groups due to numerous anthropogenic sources (see page 26). Netting of oil pits and ponds Closed loop drilling fluid systems, $130,680 to $174,240 per acre to net ponds Cost not available for closed loop drilling fluid systems, but may be a net cost savings in arid areas with water conservation requirements. One commenter stated that it is simply one tool in what must be a approach... 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