Migratory Birds: Greater Vulnerability under Trump Administration’s Policies on Incidental Take and Habitat

Carol J. Miller

Thousands of birds migrate, impervious to whether they are crossing state or international lines and whether the water bodies or electric poles on which they land pose a life-threatening potential. More than half of North American birds migrate. The Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703–12, is one of the oldest U.S. laws aimed at protecting a migratory species. The MBTA was passed in 1918 to implement the 1916 Convention Between the United States and Great Britain (on behalf of Canada) for the Protection of Migratory Birds, art. I, 39 Stat. 1702, T.S. No. 628 (1916). Under the Department of Interior, the U.S. Fish and Wildlife Service (FWS) administers the implementation of the MBTA. The Trump administration’s 2018 proposals reinterpret the MBTA so that incidental take permits would not be required, and critical habitat would see less protection under the Endangered Species Act––increasing risks for migratory birds.

Migratory Bird Treaty Act

The MBTA makes it “unlawful at any time, and by any means or in any manner, for a person to: pursue, hunt, take, capture, kill, attempt to take, . . . purchase, . . . ship, export, import, . . . , any migratory bird, any part, nest, or egg . . . ” without a permit. 16 U.S.C. § 704(a). A “take” of a migratory bird is defined in the rules implementing the MBTA as pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting a protected bird, or any attempt to do so. 16 U.S.C. § 718(j)(b)(5). The MBTA “take” provision is to be applied without regard to the social or economic utility of the activity that harms the migratory birds. Violation of the MBTA is a misdemeanor with no mens rea requirement for most violations. 16 U.S.C. § 707. It was amended in 1986 to require “knowingly” scienter if one is “taking” a migratory bird for the purpose of selling it (Pub. L. 99-645 (1986)) or baiting a field for hunting, as amended in 1998. Pub. L 105-312 (1998).

The FWS designates 170 of the migratory birds as “game birds,” for which a permit is necessary to be able to intentionally hunt and kill a limited number of the designated species. The season in which hunting is allowed is limited, as well as placing constraints on commercial hunting. A permit is required for an individual to be able to hunt and kill a limited number of birds. FWS, Migratory Bird Hunting Regulations, www.fws.gov/birds/policies-and-regulations/regulations/migratory-bird-hunting-regulations.php.

Incidental Take

President Obama’s Interior Department solicitor issued an opinion on January 10, 2017, interpreting the MBTA as prohibiting “incidental takes” of migratory birds. The MBTA does not expressly require a willful or intentional taking to prove liability. Foreseeable harm should be avoided, even if associated with lawful activities, since the statute applies to taking the bird “by any means or in any manner.”

In his July 25, 2018, opinion, Daniel Jorjani (Interior Department solicitor under the Trump administration) concluded that the MBTA applies only to affirmative actions that have as their stated purpose the killing of protected migratory bird species. Hunting migratory birds would require a permit or license (because the intent is to kill the birds). No permit would be required for incidental killing of birds under the current Interior Department’s narrow reading of the MBTA statute. This policy is aimed at protecting the timber, oil and gas industries, whose actions adversely impact migratory birds and their habitats. See Interior Department Solicitor’s Memorandum M-37050 (Dec. 22, 2017), challenged by National Audubon Society et al. v. Dept. Interior, et al., Case 1:18-cv-04601 (S.D. N Y May 24, 2018). The seventeen former Interior Department officials (from all administrations since the Nixon administration) opposed the narrower interpretation by the Trump administration. Timothy Cama, “Former Interior Officials Criticize Trump Admin Policy on Bird Killings,” The Hill (Jan. 12, 2018), https://thehill.com/policy/energy-environment/368709-former-interior-officials-criticize-trump-admin-policy-on-bird.

MBTA Cases involving Incidental Take

When migratory birds are searching for a water body upon which they land and fish, they do not know if level of chemical pollution is excessive or whether the water is or is not under the current definition of the Waters of the United States. If they land on a wastewater pit, they may die from the exposure of the chemicals or the residue on their feathers, irrespective of whether the company creating the detention pond did so with the intent to kill birds. If the intent of a windmill is to generate power––not to kill birds––the birds are just as dead if they fly into the windmills and are incidentally killed. The FWS estimates that at least 67 million birds die annually from pesticide exposure from farmland. FWS, Pesticides and Birds (Aug. 8, 2012), https://digitalmedia.fws.gov/digital/collection/document/id/273. According to the National Audubon Society:

National Audubon Society, The Migratory Bird Treaty Act Explained (Jan. 26, 2018), www.audubon.org/news/the-migratory-bird-treaty-act-explained.

If timber that contains the nests of northern spotted owls is to be felled as part of normal business activities (but without the intent to kill the birds), the MBTA is not violated, according to the Trump administration and some prior case law. No permit would be needed for the timber company, despite the fact that the owls in the nest––incidentally––will be killed and the reproduction of the species harmed. See Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 303 (9th Cir. 1991).

MBTA-protected birds used Moon Lake’s power poles and lines for perching, roosting, and hunting; these poles and lines were the proximate cause of the electrocution of 38 birds. The Colorado District Court recognized in 1999 that a misdemeanor violation of the MBTA is a strict liability crime and does not require proof of intent to take a bird. “Congress intended to prohibit conduct beyond that normally exhibited by hunters and poachers.” U.S. v. Moon Lake Elec. Ass’n, Inc., 45 F. Supp. 2d 1070, 1071 (D. Colo. 1999).

After 300 trapped birds died, the FWS gave businesses a one-year grace period, educating the companies about the heater-treater problem. The Tenth Circuit upheld the incidental taking conviction of the corporation in 2010 when FWS had given defendant advance notice that protected species of migratory birds might enter to build a nest and become trapped inside the “heater-treater” exhaust pipes of oil production equipment. Where migratory bird mortality is reasonably foreseeable as a result of the company’s conduct, the corporation can be held strictly liable for violation of MBTA. U.S. v. Apollo Energies, 611 F.3d 679, 691 (10th Cir. 2010).

The defendant manufactured pesticides and had allowed lethal levels to accumulate in a wastewater pond that was frequented by birds. One hundred birds were killed after landing on the wastewater pond. Even though the company was unaware that its discharges would kill birds, it was strictly liable for violating MBTA section 703. The court distinguished everyday activities from ultrahazardous activities. U.S. v. FMC Corp, 572 F.2d 902 (2d Cir. 1978). The Bureau of Land Management (BLM) regulations (for open-air pits on federal lands), however, generally do not compel oil and gas producers to use proven mitigation techniques to protect migratory birds.

More recently, however, the Fifth Circuit reversed the criminal conviction of Citgo when 10 migratory birds were killed as a result of landing in oil tanks and wastewater pits at a refinery the company operates in Texas. Open-air pits contain a toxic blend of organic and inorganic compounds that often prove fatal to a bird that ingests them while preening its contaminated feathers. U.S. v. Citgo Petroleum Corp., 801 F.3d 477 (5th Cir. 2015). The Obama administration had argued that industrial non-directed activities by corporations that incidentally result in the taking and killing of migratory birds violate MBTA section 707(a). But the Fifth Circuit took a position more in accord with that of the current Trump administration, holding that the defendant Citgo’s operations are not directed at killing or capturing migratory birds. It did not violate the MBTA section 703(a) “take” provision even if the deaths were reasonably foreseeable consequences of lawful industrial operations of using open-air oil and wastewater pits.

Endangered Species Act

Approximately 100 of the over 1,026 U.S. native migratory birds listed in 2013 are also listed under the Endangered Species Act (ESA). See General Provisions; Revised List of Migratory Birds; Final Rule, 78 Fed. Reg. 65,844, 65,855 (Nov. 1, 2013). Listing, delisting, and reclassification of threatened or endangered species is required to be done “solely on biological criteria and to prevent non-biological considerations from affecting such decisions,” based on 1982 amendments to the ESA. Pub. L. 97-304. According to the implementing regulations, the listing decision is to be based “solely on the basis of the best available scientific and commercial information regarding the species’ status, without reference to possible economic or other impacts of such determination.” A Trump administration proposal would remove the phrase “without reference to possible economic or other impacts of such determination” from 50 C.F.R § 424.11(b). See Endangered and Threatened Wildlife and Plants Revision of the Regulation for Listing Species and Designating Critical Habitat, 83 Fed. Reg. 35,193 (July 25, 2018).

Under the ESA section 9, “Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. § 1532(19) (emphasis added). “Harm” has been defined by regulation to mean that which actually kills or injures wildlife. Such act may include significant habitat codification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. 50 C.F.R. § 17.3 (emphasis added). In contrast, MBTA regulations do not mandate habitat protection.

Under Trump administration proposals, ESA section 9 “take” prohibitions of 16 U.S.C. § 1538(a) would apply only to species listed as endangered under the ESA, and not to those designated as threatened. Species listed as “threatened” would only have protective regulations if FWS promulgates a species-specific rule. Endangered and Threatened Species: Revision of Regulations for Prohibitions to Threated Wildlife and Plants, 83 Fed. Reg. 35,174 (July 25, 2018).

Habitat is likely to receive less protection under the Trump administration’s approach. The Trump administration wants to limit ability of Interior Secretary to “designate as critical habitat outside the geographical areas presently occupied by species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” See Endangered and Threatened Wildlife and Plants Revision of the Regulation for Listing Species and Designating Critical Habitat, 83 Fed. Reg. 35,193 (July 25, 2018).

The recent dusky gopher frog remand by the U.S. Supreme Court does not bode well for those trying to expand the habitat to include currently unoccupied historical range, especially if restoration would be necessary to open canopies and seasonal ephemeral ponds for frog breading. Dusky gopher frog was listed as endangered in 2001, with habitat designation in 2012. The Supreme Court remanded the case to the Fifth Circuit to interpret whether the historic St. Tammany lands qualify as “habitat” and whether FWS assessment of costs and benefits of the designation of Unit I (or failure to exclude it) was arbitrary and capricious and abuse of discretion. Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018).

Under the Trump administration’s view, an ESA section 10 Incidental Take Permit is only appropriate where a “take” is reasonably certain to occur. Habitat modification alone does not call for a section 10 permit. Such habitat modification would constitute a “take” only when all elements of the regulatory definition of “harm” are satisfied. Is the modification of habitat significant? If so, does that modification also significantly impair an essential behavior pattern of a listed species? Is the significant modification of the habitat, with a significant impairment of essential behavior pattern, likely to result in the actual killing or injury of wildlife?

CWA WOTUS Rule Revision

Under the December 2018 proposal by the EPA and the Department of the Army, the Revised Waters of the United States (WOTUS) Rule, ponds for migratory birds will be less likely to be protected with more restrictive federal limitations on what waters are within federal jurisdiction. For the most part, ponds would have to meet the definition of a “tributary” under the new rule, with the water features that convey perennial or intermittent flow downstream. Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel would be excluded from Clean Water Act (CWA) regulation, as would log cleaning ponds and most farm and stock watering ponds. Many wetlands are less likely to fall within the proposed WOTUS rule. Revised Definition of “Waters of the United States,” 83 Fed. Reg. 67,174 (Dec. 28, 2018).

When viewed in combination, Trump administration’s proposed regulatory changes to the MBTA, ESA, and CWA that all result in less protection for migratory birds. Instead they will provide industry and farmers more flexibility and less responsibility to implement safeguards with their activities that will adversely impact or kill many of these migratory species. These businesses should take prudent steps to minimize this impact of incident take of these species, even if the current administration does not mandate that they do so.

Carol J. Miller

Published: April 17, 2019

Carol J. Miller holds the rank of distinguished professor at Missouri State University, where she has taught business law and environmental law since 1984. She was the 2012–13 national president of the Academy of Legal Studies in Business. She is a member of the Missouri Bar and ABA, having earned a J.D. (1978) and M.B.A. (1984) from the University of Missouri-Columbia and an undergraduate degree in history and social science from Northwest Missouri State University.