Each document posted on the site includes a link to the The Service proposes that kill and take exclude unintentional actions as they are listed among directed actions such as hunt or pursue. Yet this construction renders the list meaningless, working contrary to established norms of interpretationif kill were limited to hunt and pursue, then there would be no need to include hunt and pursue on the list. These commenters recommended that the Service postpone any rulemaking regarding MBTA prohibitions of incidental take until the legal challenges to the M-Opinion currently pending in the United States District Court for the Southern District of New York are resolved. Protect the Nest. The Technicians immediately identified three mourning doves, which are protected by the Migratory Bird Treaty Act. As a result of these cases, the Federal Government is clearly prohibited from enforcing an incidental take prohibition in the Fifth Circuit. M-37050 concluded that the MBTA does not prohibit incidental take. Birds protected under the Migratory . 2. The commenters noted that through judicious enforcement and by working directly with industries to develop and implement best management practices, the MBTA has provided a key incentive for adopting common-sense practices that protect birds. In fact, agencies may codify interpretations struck down by courts and have subsequent courts defer to and uphold the later rulemaking. The Service will continue to manage and enforce the provisions of the MBTA as they relate to activities directed at migratory birds, including ensuring those holding take permits are accountable for complying with these permits. . at 1576. Due to these unknowns, we do not extrapolate cost data to small businesses. In accordance with E.O. . This table of contents is a navigational tool, processed from the . FWS-HQ-MB-2018-0090 and at https://www.doi.gov/solicitor/opinions. Deliberate implies an intentional act, where foreseeable means consequences that may be reasonably anticipated. 68A-27.003(2)(a) and 68A-16.001, F.A.C., and the Federal Migratory Bird Treaty Act. As described in the preamble to this rulemaking, the Service continues to view the misdemeanor provision as a strict-liability crime consistent with the majority of Federal courts that have ruled on the issue. Response: The Service began the NEPA process at the appropriate timewhen it first considered rulemaking regarding the interpretation of the MBTA originally set forth in M-37050. Regarding the commenter's statements on enforcing a negligence standard, the misdemeanor provision of the MBTA contains no mental state requirement and is a strict-liability crime. Therefore, these entities will have better information for planning projects and achieving goals. . Changes in design of longline fishing hooks, change in offal management practices, flagging or streamers on fishing lines, Costs are per vessel per year $1,400 for thawed blue-dyed bait The example provided by the commenter regarding active nest removal is a clear case of incidental take that is not prohibited by the MBTA, although it may violate other Federal, State, Tribal, or local laws and regulations. The Service concludes that it is in its own interest, as well as that of the public, to have and apply a national standard that sets a clear, articulable rule for when an operator crosses the line into criminality. Id. The court reasoned that it is difficult to conceive of an activity where kill applies, but hunt and take do not. Response: The MBTA, along with several other statutes, implements the migratory bird Conventions. 1559 (S.D. Many other factors are often at play for companies engaged in actions that may affect migratory birds, including public perception, green business credentials, economic factors, State law, and pressure from investors and lenders. at 1583 n.9 (noting that the FMC court's limiting principle . 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. There are voluntary Service guidelines issued for different industries that recommend best practices to avoid incidental take of protected birds; however, these guidelines provide only limited protection to potential violators and do not constitute a regulatory authorization or result in the issuance of permits. . . The list of birds now protected as `migratory birds' under the MBTA is a long one, including many of the most numerous and least endangered species one can imagine. Mahler, 927 F. Supp. Comment: Multiple commenters opposed the proposed rule because, as written, the rule does not hold entities accountable for causing the incidental take of migratory birds. The head of the agency therefore certifies that the rule would not have a significant economic impact on a substantial number of small entities. In any case, each Federal agency should continue to comply with the Executive Order, and each agency with an MOU should continue to carry out that MOU, including any conservation measures that reduce incidental take, even though that take does not violate the MBTA. In any event, the views of the 2003 Congress in a rider to an appropriation act that did not even explicitly amend any of the MBTA's language have little if any significance to interpreting the MBTA. 2509 (2002), reprinted in 16 U.S.C.A. The preamble to this regulation explains the correct context for that language and its relevance to whether the MBTA prohibits incidental take. (1) You may humanely remove a trapped migratory bird from the interior of a residence or a commercial or government building without a Federal permit if the migratory bird: (i) Poses a health threat (for example, through damage to foodstuffs); Some courts have attempted to interpret a number of floor statements as supporting the notion that Congress intended the MBTA to regulate more than just hunting and poaching, but those statements reflect an intention to prohibit actions directed at birdswhether accomplished through hunting or some other means intended to kill birds directly. Because entering the nesting area can result in raptors leaving their nests, eggs, and young, such action is considered a disturbance and prohibited by Federal and some state laws. See Geer v. Connecticut, 161 U.S. 519 (1896). The agency in essence has already been implementing the underlying policy change that is reflected in the rulemaking without the benefit of public review and comment at the time it made that policy change. 04/17/2023, 244 Trucking Ass'ns, 531 U.S. 457, 468 (2001). Thus, it is unclear what activities are extrahazardous. In FMC, the concept was applied to the manufacture of toxic chemicals, i.e., pesticides. Response: The Service's implementation of the Fish and Wildlife Conservation Act is not directly relevant to this rulemaking. An example of this are shorebird nests which may appear to be just a small depression or scrape in the ground, perhaps lined with some twigs, stones, or shells, that can be very hard to identify as a nest. Federal statutes such as the Endangered Species Act and the Bald and Golden Eagle Protection Act require entities to take steps to reduce incidental take and protect habitat, which may in turn benefit migratory birds and other wildlife. 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. Thirteen States have regulations governing the treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. . We will also continue to monitor bird populations in partnership with State wildlife agencies and other stakeholders. 1802. Comment: Multiple States commented that the proposed rule would lead to further declines in migratory bird populations. The commenter asked whether the Service will be establishing a fund to step in for cleanup and incidental take mitigation when environmental mishaps occur. At the very least, the Department should not be providing the minimum comment period. For example, colonial nesting birds are highly sensitive to disturbance; destruction of their nests during or near the nesting season could result in a significant level of take. Finally, in 1918, Federal regulation of the hunting of wild birds was a highly controversial and legally fraught subject. M-37050 is available on the internet at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. . There is nothing in this legislation that authorizes the government to pursue incidental takings charges in other contexts. 3110. Moreover, the M-Opinion, which provided the original basis for this rulemaking, has been publicly available for more than 2 years. The scope of liability under an interpretation of the MBTA that extends criminal liability to all persons who kill or take migratory birds incidental to another activity is hard to overstate, CITGO, 801 F.3d at 493, and offers unlimited potential for criminal prosecutions. Brigham Oil, 840 F. Supp. To a certain extent, some degree of short-term uncertainty is to be expected when a change in agency practice occurs. In addition, a letter was sent through our regional offices to invite Tribes to engage in this proposed action via the government-to-government consultation process. Based on the analysis contained within the final EIS, the Service selected Alternative APromulgate regulations that define the scope of the MBTA to exclude incidental take. The majority of Minnesota's birds are protected by the federal Migratory Bird Treaty Act of 1918 (MBTA), which prohibits the take of birds, their nests, and/or their eggs, whether intentional or unintentional. The Tenth Circuit in Apollo Energies took a similar approach, holding the MBTA requires a defendant to proximately cause the statute's violation for the statute to pass constitutional muster and quoting from Black's Law Dictionary to define proximate cause. Apollo Energies, 611 F.3d at 690. Response: This rulemaking does not present a false choice between regulatory certainty and implementing the MBTA. The final EIS and Regulatory Impact Analysis analyze the ecosystem services, such as insect consumption, provided by migratory birds. The Service is a conservation organization and will continue to address bird-conservation priorities in a manner that provides for the most effective conservation of protected species, such as working with domestic and international partners to conserve habitat and habitat connectivity, addressing threats both anthropogenic and natural, developing partnerships with Federal, State, and Tribal agencies, industry and NGOs that address the greatest conservation needs, and effectively implementing the array of Federal statutes that provide protections for migratory birds. Because no take has occurred within the meaning of the MBTA, the strict-liability provisions of the Act would not be triggered. Comment: Multiple commenters opposed the proposed rule because it removes the MBTA as the only mechanism that the Service can apply to require actions that avoid or minimize incidental take that is otherwise preventable. As a matter of both law and policy, the Service hereby adopts the conclusion of M-37050 in a regulation defining the scope of the MBTA. To avoid these absurd results, the government has historically relied on prosecutorial discretion. See Bob Stump National Defense Authorization Act for Fiscal Year 2003, Public Law 107-314, Div. The Court held that when an agency rescinds a prior policy its reasoned analysis must consider the `alternative[s]' that are `within the ambit of the existing [policy].' This analysis first estimates the number of businesses impacted and then estimates the economic impact of the rule. 703-712. Protection may entail maintaining a safe, 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. Instead, the opposite is true. Professional sweeps should know that swifts are protected under the Migratory Bird Treaty Act, and anyone who knowingly destroys birds or nests that might contain eggs or young can be fined or penalized. Comment: One commenter noted that the recent Supreme Court ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), does not support this rulemaking. 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. See Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir. documents in the last year, 82 Vegetation removal may occur if the area has been surveyed within 10 (ten) days prior to removal as long as only inactive bird nests, if any are . Congress specifically demonstrated its familiarity with the development of take liability in 1998 when it tackled the unfairness of strict liability in baiting cases. In some sense, actions directed at migratory birds are deliberate in nature, but the concept of foreseeability is not relevant. FWS-HQ-MB-2018-0090. The Service completed these consultations prior to publication of this final rule. Response: The Service works with offshore-wind-energy companies and Federal and State agencies responsible for regulating this industry. The commenters reasoned that Congress could have directed the Service to issue MBTA regulations that achieved the same result as this rulemaking action by limiting the MBTA to direct actions against migratory birds. 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