March 01, 2018

A year for the birds: ESA developments and a new interpretation of the MBTA in 2017

Carlos Romo

President Trump and his administration have been intent on putting their imprint on environmental and energy policy. In many cases, this has meant reversing significant policy efforts enacted during the Obama administration. The Trump administration’s changes during its first year to policy and enforcement priorities under the Endangered Species Act (ESA) and Migratory Bird Treaty Act (MBTA) follow this trend.


“Review” of sage grouse decision and critical habitat policy

The U.S. Fish and Wildlife Service (Service) under President Obama embarked on an ambitious agenda under the ESA, much of it driven by a 2011 Settlement Agreement in a case before the U.S. District Court for the District of Columbia. The Settlement Agreement, which is still affecting the Service’s workplan, dictates certain timelines for the Service to make decisions whether to list a species as threatened or endangered under the ESA. The Service made listing decisions from 2011 to 2016 on species like the dunes sagebrush lizard, lesser prairie chicken, and greater sage grouse.

The 2015 decision not to list the greater sage grouse was the result of a monumental effort by 11 states and Department of the Interior’s Bureau of Land Management (BLM) to adopt sage grouse conservation plans. Over 98 BLM and Forest Service land use plans were updated to address the sage grouse. Thus, it was significant that the Department of the Interior announced in June 2017 a decision to review and possibly modify federal sage grouse plans. Interior Secretary Zinke acknowledged that the review will be guided by Trump’s executive order directing agencies to promote domestic energy production on public lands.

The Service also initiated a review of a 2016 rule adopting a new approach to designation of critical habitat. The rule mirrors issues in a recent case, for which the U.S. Supreme Court has granted certiorari, that addresses the deference owed to the Service for designation of unoccupied habitat as critical habitat. That case might also significantly alter the Service’s ability to designate critical habitat—and address the constitutionality of the ESA more generally—depending on the case outcome. See Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv..

“Reexamination” of ESA policy and ESA reform

Other ESA policies will be shaped by the Trump administration’s priorities as well. For example, the Obama administration made “compensatory mitigation” a key component of ESA policy and adopted a new approach guided by a concept called “net conservation gain.” A March 2017 executive order rescinded an Obama presidential memorandum on mitigation and ordered a “thorough reexamination” of mitigation policy. In November 2017, the Service announced an intent to solicit additional input “regarding whether to retain or remove net conservation gain as a mitigation planning goal.”

ESA reform in Congress is also a higher priority under this administration. Targeted reforms focused on use of “best available science” in the section 4 petition process and greater involvement of states have the highest chances of success. It would not be surprising to see more support for efforts to delist particular species. The ESA section 7 consultation process could also be an area where incremental changes could be achieved.

Department of the Interior Solicitor’s opinion on incidental take under MBTA

One week before 2017 ended, the Solicitor’s office of the Department of the Interior issued the 41-page memorandum opinion, M-37050, interpreting the MBTA to not prohibit nonintentional, incidental take. The memorandum reversed a prior Solicitor opinion issued on January 10, 2017, and was intended to clarify whether the MBTA intended to criminalize activities causing incidental take of migratory birds, a question that had split the U.S. Circuit Courts of Appeals. M-37050 may only provoke new questions as to its ability to bind the agency and affect prosecutorial discretion.

Disputed meaning of “take” in MBTA

2018 is the one-hundredth anniversary of the MBTA. The statute and its implementing regulations, which include strict criminal liability and fines, are not specifically limited to intentional “take” of migratory birds. As a result, courts were split as to whether the MBTA authorizes criminal enforcement against activities causing unintentional “incidental take” of migratory birds. For example, in United States v. Apollo Energies Inc., 611 F.3d 679 (10th Cir. 2010), the Tenth Circuit affirmed fines and misdemeanor violations for two oil drilling operators in Kansas after two birds were discovered lodged in oilfield equipment. The court found it significant that the Service had previously investigated and alerted the company of the potential for birds to be killed by the equipment. Id. In contrast, in United States v. Citgo, 801 F.3d 477 (5th Cir. 2015), the Fifth Circuit reversed a district court’s order criminalizing incidental take at a refinery and concluded that the MBTA’s ban on take only prohibits intentional acts. See also, Newtown County Wildlife Ass’n v. United States Forest Serv., 113 F.3d 110 (8th Cir. 1997); Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 303 (9th Cir. 1991); United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978).

Partly in response to the conflict in the courts, the Service announced a Notice of Intent to consider an incidental take permitting program (similarly to incidental take permits under the ESA) for the MBTA. Response was mixed. On the one hand, some stakeholders believed the Service never had the ability to require a permit for an activity that is not expressly prohibited in the statute. Other entities saw a permitting program as providing more certainty. See Trends Nov/Dec 2015.

Effect of Solicitor’s 2017 opinion

In M-37050, the Solicitor analyzed legislative history, the language of the MBTA, and the different circuit courts of appeals opinions and concluded that the MBTA did not intend to criminalize incidental take. As an official policy pronouncement, the memorandum will certainly influence whether Service investigators pursue MBTA enforcement actions. But it is not clear if the memorandum binds the agency. If it does, there might be an argument that it should have been adopted as a rulemaking subject to notice-and-comment procedures. Will prosecutors defer to this memorandum in deciding whether to bring an MBTA enforcement action for incidental take? How would a court weigh the Solicitor’s opinion versus the Apollo Energies decision in the Tenth Circuit? What deference would a court give to the Solicitor’s interpretation? What appears to be clear is that the MBTA incidental take permitting program will likely not advance under the Trump administration.


Carlos Romo

Carlos Romo is an attorney at Lewis Bess Williams & Weese PC in Denver specializing in natural resources law. He has helped a variety of clients navigate and litigate ESA and MBTA issues for various “charismatic megafauna” and other species, including the American burying beetle, dunes sagebrush lizard, lesser prairie chicken, greater sage grouse, and whooping crane.