Will a new approach fly? The FWS considers implementing an incidental take program under the Migratory Bird Treaty Act

MBTA background

Almost 200 years ago, the United States negotiated a treaty with Great Britain (acting on behalf of Canada) for the protection of migratory birds. The United States passed the MBTA in 1918 to implement the treaty and later entered into three more migratory bird treaties with Mexico, Japan, and the USSR, each of which the United States implemented through MBTA amendments.

During the late 19th and early 20th centuries the predominant threat to migratory birds was unrestrained hunting and poaching. To address this issue, the MBTA imposes misdemeanor and felony criminal penalties for the unauthorized killing of protected species. Today the act protects over 1,000 bird species, from rare birds also protected under the Endangered Species Act (ESA) to common and abundant species such as crows and bluebirds.

The expanding scope of MBTA regulation

Prior to 1970, FWS enforcement of the MBTA focused on prosecuting those entities who specifically targeted migratory birds. Although the government originally applied the statute to conduct directed at birds, such as hunting, there is no explicit limitation within the MBTA that limits liability only to intentional takes. Beginning in the 1970s, FWS expanded the scope of the act by enforcing against incidental takes of migratory birds (killings that occur incidentally to otherwise lawful activities).

Although FWS has prosecuted companies for incidental takes associated with industrial activities, the agency and the courts have declined to hold federal agencies liable for activities that modify habitat and may result in migratory bird deaths. The MBTA does not define the term “take,” but FWS regulations implementing the act define “take” as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt” to do any of those actions. Notably, and unlike the definition of the term “take” in the ESA, the definition does not include harm to habitat. As a result, and despite President Clinton’s reference in a 2001 Executive Order to the need to protect migratory bird “habitats,” courts have rejected claims that habitat modification or destruction can result in liability under the MBTA.

Federal circuits split on issue of incidental takes

The overall expansion of liability under the MBTA to include incidental takes resulting from industrial activity has resulted in a problematic and ongoing circuit split as to whether the MBTA imposes strict liability for incidental takes. Due in part to the fact that the misdemeanor provision does not include a mens rea element, some circuits now hold that the MBTA imposes strict liability for all misdemeanor violations. Thus, an energy company can be held strictly liable for a misdemeanor if a migratory bird is killed by the operation of an electricity generating facility.

Strict liability for incidental takes is limited only by a necessary finding of proximate cause to avoid “absurd” results such as being held liable for a bird flying into a car windshield. This proximate cause requirement rests on concepts of notice and foreseeability. In United States v. Apollo Energies Inc., 611 F.3d 679 (10th Cir. 2010), FWS first warned the operator of an oil field that its facility could kill migratory birds before eventually prosecuting that defendant for failing to take steps to address the issue. The Tenth Circuit reasoned that because the defendant was on notice that its operations could result in MBTA violations, the defendant could be held liable for incidental takes.

Other circuits, however, do not follow Apollo. They have held instead that the misdemeanor provision applies only to intentional and direct takes of migratory birds. Most recently, on September 4 the Fifth Circuit reversed an MBTA conviction, noting that if the statute holds strictly liable all foreseeable acts or omissions that directly kill birds, “then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MBTA.” United States. v. CITGO Petroleum Corp., -- F.3d --, No. 14–40128, 2015 WL 5201185, *14 (Sept. 4, 2015).

This latest decision only widens a problematic circuit split. The Second and Tenth Circuits read the text of the MBTA broadly to impose strict liability, while the Fifth, Eighth, and Ninth Circuits hold that liability only applies to deliberate acts specifically directed towards migratory birds. This split creates substantial confusion and legal uncertainty for FWS, regulated industries, and federal district courts.

Existing mechanisms to address incidental takes

Currently, FWS addresses the issue of incidental takes under the MBTA through a combination of enforcement discretion, voluntary guidelines for industries, and very narrow permitting categories that allow for incidental takes.

It has been longstanding practice for FWS to use its own discretion in determining when to enforce against industrial activities that violate the MBTA. As in Apollo, FWS typically notifies companies of potential violations and then allows a “grace period” to address the issue before choosing to prosecute. Companies that cooperate with the agency and take steps to mitigate against bird deaths may receive assurances from FWS that they will not be prosecuted. Nevertheless, such assurances do not provide complete certainty, as agency policies and administrations change over time. Moreover, enforcement discretion does nothing to further bird conservation efforts.

FWS also utilizes voluntary guidance documents to help potentially liable industries avoid impacting migratory birds. FWS does consider the extent to which a company adheres to these guidelines in deciding to exercise its enforcement discretion, but it does not completely absolve companies from liability. The current guidelines may help advance conservation efforts, but it remains unclear what exactly constitutes adherence to the guidelines. Ultimately, nothing prevents FWS from taking action against a company for incidental takings, even if the company attempts to follow the guidelines.

Finally, the MBTA allows for some purposeful taking of migratory birds through narrow categories of special use permits—principally for scientific, noncommercial activities. Congress has also authorized an incidental take program under the MBTA for military readiness exercises that could result in migratory bird deaths. These programs can help bird conservation efforts but are extremely limited in scope and fail to address the larger issue of incidental takes from industrial activities.

Considering a new approach to incidental takes

The existing mechanisms have proven ineffective at preventing bird deaths and provide very little legal certainty for industries. Currently, there is no clear mechanism for industry to ensure compliance with the MBTA. It is now apparent that the status quo does not adequately serve the regulated community or protect migratory birds.

In response, FWS is now considering implementation of a broader incidental take permitting program under the MBTA. The statute gives FWS, acting for the Secretary of the Interior, the authority to allow incidental takes without the need for congressional action. Section 704(a) states that “the Secretary . . . is authorized and directed, from time to time . . . to determine when, to what extent, if at all . . . it is compatible with the terms of the conventions to allow . . . taking . . . and to adopt suitable regulations permitting and governing the same.” 16 U.S.C § 704(a).

The May 26 NOI represents the first step in a long process of implementing such a program. The PEIS will evaluate four different approaches to regulating incidental takes. Each one would require FWS to promulgate new regulations. FWS’s decision to complete a PEIS may be evidence that the agency intends to combine some or all of the four approaches to regulate incidental takes by addressing a variety of circumstances.

The first approach would be to implement general conditional take authorizations for particular industry sectors, including oil, gas, and wastewater disposal pits; methane or other gas burner pipes; communication towers; and electric transmission and distribution lines. FWS will also consider expanding these categories to include take authorizations for wind energy generating facilities. Notably, the NOI makes no mention of the solar electricity generation sector.

The second proposed approach would establish individual permits for select projects and activities not covered by a general conditional take authorization. FWS acknowledges that for this approach to be effective, the agency needs to explore “ways to minimize the administrative burden of obtaining individual incidental take permits . . . such as combining environmental reviews for those permits with reviews being conducted for other Federal permits or authorizations.” 80 Fed. Reg. 30,032, 30,035 (May 26, 2015).

A third approach would require an expansion of FWS agreements with other federal agencies and authorizing incidental takes by agencies that sign Memorandums of Understanding (MOUs) with FWS. President Clinton’s 2001 Executive Order provides support for this approach. FWS negotiated some MOUs with other federal agencies in the past, although those existing MOUs do not authorize incidental takes.

A final approach would be to expand the current voluntary guidelines for industries that seek to identify best management practices to avoid migratory bird mortality. Under this approach, FWS would continue to exercise enforcement discretion vis-à-vis cooperative companies.

Ramifications of a new program

A new incidental take permitting program could provide greater legal certainty for industries, while compensatory mitigation standards associated with the permitting program could advance migratory bird conservation efforts. Additionally, a new program could help to resolve the ongoing issues related to enforcement discretion and judicial review under the MBTA.

FWS will likely address the remaining unanswered questions when it develops a draft rule after completing a final PEIS. In public meetings across the country, agency officials stressed that any future rule would not result in a radical change in the landscape. FWS aims to restrict the permitting program to a reasonable scope and there are currently no plans to ramp up law enforcement efforts, agency officials said.

FWS also assures interested parties that the agency is not currently considering application of an incidental take program to the transportation or building sectors. The NOI makes clear that FWS would not expect that individuals who might incidentally take a migratory bird to obtain a permit. In other words, it would not be necessary to acquire an incidental take permit to protect against liability for hitting a bird on the highway or a bird flying into a glass window of a tall building.

It is unclear exactly how a new program might impact other federal agencies, beyond the potential need to commit to an MOU with FWS. For example, would federal agencies engaged in permitting activities that result in habitat modification need to acquire incidental take permits? As of now, agency officials are unsure what the scope of enforcement discretion would be for the MOUs between FWS and other federal agencies. As noted above, courts have rejected prior claims that habitat modification or destruction can result in liability, but that could change under a new incidental take program.

Of course, if FWS proceeds with any of the approaches to regulating incidental takes, there is the potential for litigation. Even if FWS declined to bring enforcement actions against other federal agencies, those agencies could be vulnerable to citizen suit claims under the Administrative Procedure Act that seek to enjoin agency actions that violate the take prohibition of the MBTA.

Any new program would also have to comport with the terms of the various treaties the MBTA implements. Three of the four treaties specifically allow takes for “other specific purposes,” which are limited to “scientific, educational [and] propagative” purposes. Some commentators speculate that a court could reasonably find that an incidental take program for large industries does not directly support any of those “other specific purposes.”

But, ultimately, it seems unlikely that anything in the four treaties, the MBTA, 2001 Executive Order, the existing MOUs, or agency guidance documents precludes FWS from creating an incidental take program. Congress did not clearly address the issue of incidental takes in the text of the MBTA. If FWS proceeds with an administrative rulemaking creating a new permitting program, it is likely to survive judicial review, as a court would apply Chevron deference to the agency’s interpretation of the statute.

Despite any uncertainties that exist at this stage of the process, environmental groups and industry officials alike seem optimistic about the proposal. The comment period for the PEIS ended July 27, but there will be more opportunities for interested parties to comment on the proposal. Subsequent opportunities for comment will likely arise concerning a draft PEIS sometime in 2016, followed by a draft rule and a final promulgated rulemaking.