1311, and Agreement Supplementing the Agreement of February 7, 1936, U.S.-Mex., Mar. We decline to adopt that proposal for the same reasons we rejected application of a gross-negligence standard. The MBTA's legislative intent is to prevent needless losses, establish closed seasons for hunting, prohibit the taking of nests or eggs of migratory game or insectivorous nongame birds except for scientific or propagating purposes, further establish longer closures for certain species, and provide for the issuance of permits to address the killing of specified birds. Infeasible to net pits larger than 1 acre due to sagging. documents in the last year, 493 properly can be left to the sound discretion of prosecutors and the courts). Geer v. Connecticut, 161 U.S. 519, 523 (1896) (quoting Digest, Book 41, Tit. A primary reason for engaging in this rulemaking is to remove any uncertainty in application of the statute to alleviate precisely the concern voiced by this comment. 1996), the court described the interplay between activities that are specifically directed at birds and the strict liability standard of the MBTA: [A comment in the legislative history] in favor of strict liability does not show any intention on the part of Congress to extend the scope of the MBTA beyond hunting, trapping, poaching, and trading in birds and bird parts to reach any and all human activity that might cause the death of a migratory bird. Sweet Home, 515 U.S. at 698 n.11 (Congress's decision to specifically define take in the ESA obviated the need to define its common-law meaning). Thirteen States have regulations governing the treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. See United States v. Moon Lake Electrical Ass'n, 45 F. Supp. He noted that a statute's application may reach `beyond the principle evil' legislators may have intended or expected to address, Bostock, 140 S. Ct. 1731, 1749, but only where no ambiguity exists in the broadness of that statutory language. at 374, 375 (citation omitted). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. This rulemaking will not affect those investigations. One alternative in the draft EIS covers the expected effects of reverting to the Department's prior interpretation of the statute. Treaty Act and Migratory Bird Conservation Act (16 U.S.C. Tribal representatives were allowed to ask questions and seek clarifications. Response: Monitoring bird populations is outside the scope of this action. Enough birds will keep every insect off of every tree in America, and if you will quit shooting them, they will do it. Closed wastewater systems typically used for reasons other than bird mitigation. Those alternatives analyze the environmental effects of both prohibiting incidental take under the MBTA and excluding incidental take under the MBTA and gave the public opportunity to comment on those effects. The prior Solicitor's Opinion, M-37041, took a different tack from the NRDC court and assumed that because the criminal misdemeanor provision of the MBTA is a strict-liability crime, meaning that no mens rea or criminal intent is required for a violation to have taken place, any act that takes or kills a bird must be covered as long as the act Start Printed Page 1137results in the death of a bird. The Migratory Bird Treaty Act (MBTA; 16 U.S.C. in the Senate, Leaders in Recent Successful Fight for the Migratory Bird Treaty Act, BulletinThe American Game Protective Association, July 1918, at 5, explained: Nobody is trying to do anything here except to keep pothunters from killing game out of season, ruining the eggs of nesting birds, and ruining the country by it. Response: The proposed rule did not provide a threshold for prohibiting incidental take because it proposed to codify the interpretation set forth in M-37050 that the Act does not prohibit incidental take in the first place. Moreover, as noted above, at least two appellate courts have specifically found that the terms take and kill are ambiguous and apply to physical conduct of hunters and poachers. Accordingly, a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Fox Television, 567 U.S. at 253 (quoting Connally v. General Constr. The commenter stated that the Department and the Service misinterprets the Fifth Circuit's narrow decision in CITGO, 801 F.3d 477 (5th Cir. Compare Mexico Treaty Act, 49 Stat. Instead, the MBTA and the Migratory Bird Conservation Act are complementary: Together, the Treaty Act in regulating hunting and possession and the Conservation Act by establishing sanctuaries and preserving natural waterfowl habitat help implement our national commitment to the protection of migratory birds. United States v. North Dakota, 650 F.2d 911, 913-14 (8th Cir. Data are unavailable regarding fleet size and how many measures are employed on each vessel. Response: The operative language originally enacted in section 2 of the MBTA has not substantively changed since 1936. better and aid in comparing the online edition to the print edition. This administration's sudden policy change has thrown decades of practice and policy into upheaval for all entities, including industry, Federal, State, local, and international agencies, conservation groups, and more. is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat. 16 U.S.C. Learn more about structure "In reference to your request for documentation for the removal of an active Osprey nest from the light pole at the soccer field, please be advised that none exist. under the Bald and Golden Eagle Protection . Nothing in this rulemaking changes the language or purpose of the MBTA. Migratory Bird Permit | U.S. In addition to the snowy egret and the sandhill crane, the wood duck was one of the threatened species that prompted the passage of the Migratory Bird Treaty Act of 1918, after a landmark Supreme Court case, Missouri v. Holland, that asserted the federal government's right to regulate hunting. The commenters conclude that the Service should focus enforcement of incidental take on large-scale, high-mortality, and predictable situations where unintentional loss of migratory birds is likely to occur, based on the best scientific information. See Natural Res. . . documents in the last year, 658 See generally United States v. FMC Corp., 572 F.2d 902, 904 (2d Cir. In Homeland Security, the Supreme Court rejected the Trump Administration's effort to rescind the Deferred Action for Childhood Arrivals (DACA) program, partly because the Department of Homeland Security (DHS) had sought to justify its rescission of the entire program on the basis that certain affirmative benefits should not be extended to DACA recipients while failing to consider the policy alternative of decoupling the extension of benefits from the deferral of deportation action. The 1988 amendment was, as noted, simply a reaction to a court decision that added a negligence standard for baiting violations. The NEPA process provides a broad analysis of the environmental and socioeconomic impacts of reasonable alternatives to the agency's proposal. Further, as a practical matter, inconsistency and uncertainty are built into the MBTA enforcement regime by virtue of a split between Federal Circuit Courts of Appeals. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y. Because the proposed alternative would have established a minimum mens rea of gross negligence before the Service could enforce the statute's misdemeanor provision, it would not be legally defensible. Codifying our interpretation that the MBTA does not prohibit incidental take into Federal regulations would provide the public, businesses, government agencies, and other entities legal clarity and certainty regarding what is and is not prohibited under the MBTA. the current document as it appeared on Public Inspection on Nine Tribes and two Tribal councils requested government-to-government consultation. 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. We will also continue to monitor bird populations in partnership with State wildlife agencies and other stakeholders. 715-715s). In addition, even if such a conclusion is not legally compelled, the Service proposes to adopt it as a matter of policy. Comment: Multiple commenters claimed that because the new Solicitor's Opinion rests on but does not resolve the Circuit court split indicates that courts are not obligated to adhere to its interpretation. When Congress did attempt to assert a degree of Federal jurisdiction over wild game with the 1913 Weeks-McLean Law, it was met with mixed results in the courts, leaving the question pending before the Supreme Court at the time of the MBTA's enactment. L. 79-404, 60 Stat. . Thus, the only legislative enactment concerning incidental activity under the MBTA is the 2003 appropriations bill that explicitly exempted military-readiness activities from liability under the MBTA for incidental takings. Response: We agree with the comment that the language of section 2 of the MBTA pertains to conduct directed at migratory birds and not conduct that incidentally results in the death of migratory birds. 1981), aff'd on other grounds, 460 U.S. 300 (1983). Comment: One commenter questioned the evidence suggesting that this rule change is warranted. Rather, it appears Congress acted in a limited fashion to preempt a specific and immediate impediment to military-readiness activities. There is nothing in this legislation that authorizes the government to pursue incidental takings charges in other contexts. Here, an attempt to impose liability for acts that are not directed at migratory birds raises just such constitutional concerns. The Service will continue to work with State and local governments as well as industry to implement voluntary measures to reduce impacts to migratory birds. This approach would include creating a definition of extra-hazardous activities and enforcing incidental take when it results from gross negligence. In fact, such partnerships will likely become increasingly important to promote conservation of migratory birds and lead to greater consistency in both conservation and regulation nationwide. This rulemaking codifies that interpretation; thus, the Service has ultimately determined that developing a framework to authorize incidental take is not an action that is consistent with the statute. A Rule by the Fish and Wildlife Service on 01/07/2021. See Ogden at 29 (Historically, the limiting mechanism on the prosecution of incidental taking under the MBTA by non-federal persons has been the exercise of prosecutorial discretion by the FWS.); see generally FMC, 572 F.2d at 905 (situations such as deaths caused by automobiles, airplanes, plate glass modern office buildings or picture windows in residential dwellings . In addition, the Flyways noted that no alternatives were put forth and there was no opportunity to propose other alternatives. This rule is an E.O. Thus, we disagree with the commenter's assertion that this rule restricts or alters the meaning or intent of the MBTA. Under the facts of this case, the MBTA does not give `fair notice as to what constitutes illegal conduct' so that [the farmer] could `conform his conduct to the requirements of the law.' Response: The intent of this rulemaking is not to harm States, but to interpret the MBTA in the manner Congress intended when it drafted and enacted the statute. We explain the meaning of the terms take and kill in the context of section 2 in turn below. . Table 2Finfish NAICS 14111: Employment Sizes and Payroll1. Prior to the publication of the proposed rule, the Service held six public scoping webinars in March 2019, which were open to any members of the public, including members of Federal and State agencies, Tribes, non-governmental organizations, private industries, and American citizens. The Service has sought to justify the reversal on the grounds that, [w]hile the MBTA does contemplate the issuance of permits authorizing the taking of wildlife . SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. As the Fifth Circuit explained, [a] single carve-out from the law cannot mean that the entire coverage of the MBTA was implicitly and hugely expanded. CITGO, 801 F.3d at 491. 703-712 (although 709 is omitted), is a United States federal law, first enacted in 1918 to implement the convention for the protection of migratory birds between the United States and Canada. . Additionally, Article V prohibits the taking of eggs or nests of certain protected species, except for scientific and propagating purposes under regulations issued by the parties, and Article VI prohibits transport, import, and export of protected species except for scientific or propagating purposes. Also included are migratory birds and other species protected by state rules. Comment: Multiple commenters noted that the effects of this rule on ESA-listed species must be seriously scrutinized in an EIS as well as in section 7 consultation under the ESA. Moon Lake, 45 F. Supp. The cases cited by the court in footnote 13 interpreting the term kill do so in the context of criminal homicide, which unsurprisingly interprets kill in the broader sense. We will continue to implement these programs consistent with our treaty obligations. Response: This rulemaking is based on the Department's interpretation of ambiguous language in a statute the Secretary is charged with implementing and does not amend the language of the MBTA. We refer the commenter to the EIS for analysis and discussion of the environmental impacts of the proposal and reasonable alternatives. There is no requirement under the APA to consider alternatives in a proposed rule. Response: We have chosen to codify the interpretation set forth in Solicitor's Opinion M-37050 and interpret the scope of the MBTA to exclude incidental take. 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. Thirteen States (Illinois, Arkansas, Oklahoma, Texas, North Dakota, South Dakota, Nebraska, Montana, Wyoming, Colorado, Utah, New Mexico, and California) have regulations governing the treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. Following Wind Energy Guidelines, which involve conducting risk assessments for siting facilities. Response: The language proposed by the commenter is not consistent with our interpretation of the MBTA. As is the case with the ESA, in the MBTA, [t]he taking prohibition is only part of the regulatory plan . Comment: The Flyway Councils noted that the proposed rule was brought forth without the proper procedures as outlined by NEPA and the APA. Comment: Multiple commenters suggested that compliance with the MBTA was not a burden to State and local governments and has straightforward and minimal impacts on capital-improvement projects. 703-704. Response: Project-level information is still recorded when a project proponent engages the Service for technical assistance. Ctr. Interior's elimination of longstanding Federal protection harms State interests. are not part of the published document itself. That is, all the words before the word kill are active verbs. . Every effort shall be made by the Contractor not to disturb any nests with eggs or young. To the contrary, there are several situations where kill retains independent meaning. Pursue means [t]o follow with a view to overtake; to follow eagerly, or with haste; to chase. Webster's Revised Unabridged Dictionary 1166 (1913); Hunt means [t]o search for or follow after, as game or wild animals; to chase; to pursue for the purpose of catching or killing., Capture means [t]o seize or take possession of by force, surprise, or stratagem; to overcome and hold; to secure by effort., Habitat destruction, described generally as the extension of agriculture, and particularly the draining on a large scale of swamps and meadows; and, Hunting, described in terms of improved firearms and a vast increase in the number of sportsmen.. In all three categories, the Service is presently ill suited to fulfill the role envisioned by the proposed rule. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. Therefore, as a matter of both law and policy, the Service adopts a regulation limiting the scope of the MBTA to actions that are directed at migratory birds, their nests, or their eggs, and clarifying that injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act. 1702. Comment: One commenter recommended that the Service prohibit incidental take that results from an extra-hazardous activity. . These entirely foreseeable effects of the action proposed by the Service must be analyzed in formal section 7 consultation under the ESA. Response: The Service appreciates the perspective of the entities that support this rulemaking. . Ind. Those laws require the Forest Service to manage national forests so as to balance many competing goals, including timber production, biodiversity, protection of endangered and threatened species, human recreation, aesthetic concerns, and many others.). The commenters felt this approach strongly suggests that the Service had already reached a conclusion about the outcome of this process and that the NEPA process is nothing more than a formality. Response: The MBTA, along with several other statutes, implements the migratory bird Conventions. 1996); Curry v. U.S. Forest Serv., 988 F. Supp. As the Court has advised, where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. 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. Comment: Multiple comments stated that this proposed major shift in policy and regulation in the MBTA will have international implications. However, Congress addressed hunting and habitat destruction in the context of the Migratory Bird Treaty through two separate acts: The Migratory Bird Conservation Act provided the authority to purchase or rent land for the conservation of migratory birds, including for the establishment of inviolate sanctuaries wherein migratory bird habitats would be protected from persons cut[ting], burn[ing], or destroy[ing] any timber, grass, or other natural growth. Migratory Bird Conservation Act, Sec. to the courts under 44 U.S.C. The Service must explain how the proposed rule meets and affects its own responsibilities and those of other Federal agencies under this Executive Order. 13771 (82 FR 9339, February 3, 2017) deregulatory action. Such small entities would benefit from this rule because it would remove uncertainty about the potential impacts of proposed projects. An intention found nowhere in its text, legislative history, or subsequent interpretation and implementation. These comments represented the views of multiple State and local government agencies, private industries, non-governmental organizations (NGOs), and private citizens. The history of the MBTA and the debate surrounding its adoption illustrate that the Act was part of Congress's efforts to regulate the hunting of migratory birds in direct response to the extreme over-hunting, largely for commercial purposes, that had occurred over the years. The proposed rulemaking extends that practice to the MBTA. Response: We constructed the purpose and need in the draft EIS to reflect our proposal to codify the correct interpretation of the MBTA as it relates to incidental take. Vultures are protected under the Migratory Bird Treaty Act, which prohibits the killing, possession, import, export, sale or purchase of any migratory bird or its parts. Response: The enforcement of the MBTA is just one part of how the Service works with others to conserve migratory birds. See id. The Service proposed to codify the interpretation set forth in Solicitor's Opinion M-37050 and presented reasonable alternatives to that proposal in the associated draft EIS. For example, the Digest of Justinian places take squarely in the context of acquiring dominion over wild animals, stating: [A]ll the animals which can be taken upon the earth, in the sea, or in the air, that is to say, wild animals, belong to those who take them. See, e.g., United States v. 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