Migratory Bird Treaty Act Liability Rule Looks to Be Short-Lived

The Biden Administration is moving quickly to undo the Trump Administration’s Migratory Bird Treaty Act (MBTA) liability rule. Published as a final rule on January 7, 2021, this rule for the first time supplied a uniform regulatory definition of the scope of liability under the Act. It interpreted the MBTA’s prohibitions as applying only to actions that are “directed” at migratory birds, and not to actions that “incidentally take” them.

The Biden Administration has taken several steps to undo the rule. On February 5, 2021, the Fish and Wildlife Service (FWS) delayed the effective date of the rule until March 8, 2021, and re-opened the public comment period on whether the rule should be amended, rescinded, further delayed, or allowed to go into effect.

In its latest move on March 8, 2021, the Department of the Interior withdrew its 2017 legal opinion which preceded and formed the basis of the rule. This opinion has been the subject of legal challenges and was vacated by a federal district court in August 2020.  Natural Resources Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020). In withdrawing the opinion, Interior stated that this federal court decision was consistent with its long-standing interpretation of the MBTA.

It is therefore likely that the Trump Administration’s MBTA liability rule will be short-lived. In its place the Biden Administration may return to policies initiated under the Obama Administration, which had considered a proposal to develop an incidental take program. Industry and project proponents undertaking activities potentially affecting migratory birds should closely monitor these developments.

Beveridge & Diamond’s Endangered Species and Wildlife Protection practice group provides strategic counseling and compliance advice to project proponents in all industries to minimize the impacts of threatened and endangered species listings and critical habitat designations on our clients’ activities. For more information, please contact the authors.