migratory bird treaty act nest removalmigratory bird treaty act nest removal

documents in the last year, 29 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 . 2d at 1080-81. Response: A wide array of statutory mandates provide protections to wildlife, including migratory birds. The Service has not addressed this international aspect in its planning and has not worked with the State Department on the issue. any migratory bird. The key words regarding the prohibition of incidental take are at any time, by any means or in any manner. The words in any manner means regardless of whether it is purposeful or not. The Service is partner to multiple efforts to track migratory bird populations (e.g., Partners in Flight Landbird Plan, Avian Conservation Assessment Database, etc.). Comment: Members of the U.S. Senate commented that the Department closed the comment period on the proposed rule in mid-March during the height of a pandemic, ignoring requests from some in Congress to extend the comment deadline, and without even responding to Congress until after the deadline ended. Similar to the earlier Conventions, the provisions of the Japan and Russia Conventions authorized purposeful take for specific activities such as hunting, scientific, educational, and propagation purposes, and protection against injury to persons and property. Accordingly, the Service initiated government-to-government consultation via letters signed by Regional Directors and completed the consultations before issuing this final rule. is not required. 252 U.S. 416, 432-33 (1920). Rather, it is the only possible reading of the MBTA that accomplishes its intended purpose. 1536(a)(2). 1577-78 (listing a litany of scenarios where normal everyday actions could potentially and incidentally lead to the death of a single bird or breaking of an egg in a nest)). Although we conclude on balance that this correct interpretation of the MBTA will reduce regulatory uncertainty created by the prior agency practice of reliance on enforcement discretion, we acknowledged in our draft EIS that different State laws may create difficulties for national companies that must navigate those differences. documents in the last year, 439 The list of applicable migratory birds protected by the MBTA is currently codified in title 50 of the Code of Federal Regulations at 50 CFR 10.13. . Despite the phrase incidental take not appearing in either the MBTA or implementing regulations, its protective statutory intent remains clear, as shown by its common and long-time use in Congressional hearings and correspondence, and in inter- and intra-agency communications. The final EIS and Regulatory Impact Analysis analyze the ecosystem services, such as insect consumption, provided by migratory birds. Response: We disagree that this rulemaking will result in a substantial increase in the number of migratory birds killed. The commenters noted that the proposed rule change is extremely limited in scope as it fails to address the evolution of threats to migratory birds or to ensure the sustainability of healthy bird populations. Some States may choose to enact changes in their management efforts and regulatory processes and staffing to develop and or implement State laws governing birds, likely increasing costs for States. To wit, according to the entry for each word in a contemporary dictionary: Thus, one does not passively or accidentally pursue, hunt, or capture. Available at: . However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. . The commenter went on to note that there is no evidence presented as to the economic burden for implementing voluntary best management practices. ), we have determined the following: a. The rule should be reissued in proposed form, allowing the public to weigh in on the alternatives and on the Service's choice. However, the economic impact of the rule on small entities is likely not significant. Only Congress can amend statutory language. 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. on Foreign Affairs, 64th Cong. provide legal notice to the public or judicial notice to the courts. Adopting the prior interpretation through regulation would not provide any more long-term certainty in this regard. Ind. [FR Doc. Federal regulation of hunting was also legally tenuous at that time. Because E.O. We conducted the NEPA analysis at the appropriate time to analyze the environmental effects of this rulemaking to codify that interpretation. For example, on the floor of the Senate, Senator Reed proclaimed: I am opposed not only now in reference to this bill [the MBTA], but I am opposed as a general proposition to conferring power of that kind upon an agent of the Government. The Service will continue to ensure that migratory birds are protected from direct take. Active Control. Regarding the comments from the Government of Canada, the Service identified the impacts to migratory birds to the extent it was able in the final EIS, based on the information available. The relevant portion of the MBTA reads, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . 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. If active migratory bird nests are purposefully disturbed on a project site, take the following steps: 1. . The proposed rule impermissibly excludes requirements of foreseeability and negligence by arguing that the statute only prohibits actions directed at birds to exempt industries whose projects kill birds incidentally. . Removal of inactive nests is allowed in most locations without the need for a permit. Thus, limiting the range of actions prohibited by the MBTA to those that are directed at migratory birds will focus prosecutions on activities like hunting and trapping and exclude more attenuated conduct, such as lawful commercial activity, that unintentionally and indirectly results in the death of migratory birds. Given the overwhelming evidence that the primary purpose of section 2, as amended by the Mexico Treaty Act, was to control over-hunting, the references to the later agreements do not bear the weight of the conclusion reached by the prior Opinion (M-37041). 85 FR at 5918, February 3, 2020. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead. United States v. Santos, 553 U.S. 507, 514 (2008) (internal citations omitted). This EIS was open for public comments, and comments focused on these analyses are addressed within the final EIS. FWS-HQ-MB-2018-0090. We have found that building partnerships domestically and internationally to build strategies for implementing measures that protect, manage, and conserve migratory birds is a more effective conservation tool than enforcing incidental take under the MBTA on a piecemeal basis with our limited law enforcement resources. Information about this document as published in the Federal Register. To the contrary, there are several situations where kill retains independent meaning. We agree that strict liability applies to misdemeanor violations of the MBTA. As is apparent from the record in this case, the Forest Service must comply with a myriad of statutory and regulatory requirements to authorize even the very modest type of salvage logging operation of a few acres of dead and dying trees at issue in this case. informational resource until the Administrative Committee of the Federal See, e.g., This also includes the . WHAT TOWER OPERATORS CAN DO TO PROTECT RAPTORS AND NESTS ON TOWERS Destruction of these nests requires a permit at all times, whether or not they are occupied and in-use. Even if they comply with everything requested of them by the Service, they may still be prosecuted, and still found guilty of criminal conduct. Further, it will discourage actors who fail to avoid, minimize, or mitigate for the impacts of their activities from gaming the system and taking advantage of the Service's limited prosecutorial resources. Response: The Service has not issued any 4(d) rules or not-warranted determinations with the understanding that MBTA protections stemming from an interpretation that it prohibits incidental take would still apply. documents in the last year, 1494 703-712): prohibits the take or attempt to take any parts of a migratory bird, including its nest, eggs, or young. Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. 2d 161 (D.D.C. 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 . Tree clearing conducted May 1 to August 31, inclusive, may result in prohibited take under the MBTA. . Response: The Service announced the scoping process in a notice of intent (NOI) to complete an EIS in the Federal Register on February 3, 2020 (85 FR 5913). The Migratory Bird Treaty Act is the primary legislation protecting native birds in the United States and one of this country's earliest environmental laws. properly can be left to the sound discretion of prosecutors and the courts). 2003). Response: The Service acknowledges that birds are currently in decline. 260; Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and their Environment, U.S.-Japan, Mar. The distribution and number of oil pits across the United States or across the remaining States is unknown. The States own and hold migratory birds in trust for their citizenry. On December 22, 2017, the Principal Deputy Solicitor of the Department of the Interior, exercising the authority of the Solicitor pursuant to Secretary's Order 3345, issued a legal opinion, M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take (M-37050 or M-Opinion). 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. A draft EIS, issued subsequent to the proposed rule on June 5, 2020, analyzed various alternatives, some of which were discussed in the public webinars conducted as part of the NEPA scoping process. 23, 2012). The announcement of the proposed rule was primarily a notification to the public and the media summarizing the contents of the proposed rule and its availability for public comment, with the viewpoints of several stakeholders included. The commenter called for the Office of Information and Regulatory Affairs to review the justification for consistency with these Executive Orders. Register (ACFR) issues a regulation granting it official legal status. The commenter recommends the Service review its own web pages and the scientific literature to show that incidental take of birds is a significant problem. Comment: Several commenters stated that some estimates of bird mortality used in the rule are more than a decade old and out of date. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. Protection of Migratory Birds: Hearing on H.R. 4, 1972) (Japan Convention); Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, 29 U.S.T. Comment: Several commenters concluded that the Department of Defense Authorization Act for Fiscal Year 2003 demonstrates that Congress intended the MBTA to prohibit incidental take of migratory birds because it directed FWS and the Department of Defense to develop a regulation authorizing incidental take of migratory birds during military readiness activities. 104-28 (Dec. 14, 1995) (outlining conservation principles to ensure long-term conservation of migratory birds, amending closed seasons, and authorizing indigenous groups to harvest migratory birds and eggs throughout the year for subsistence purposes); Protocol between the Government of the United States of America and the Government of the United Mexican States Amending the Convention for Protection of Migratory Birds and Game Mammals, Sen. Treaty Doc. Similarly, in Mahler v. U.S. Forest Serv., 927 F. Supp. "Take" broadly means to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, transport." A, Title III, Sec. 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. 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. Retrofit power poles to minimize eagle mortality, Cost not available for adjustment of turbine construction locations $100,000 to $500,000 per facility per year for pre-construction site use and post-construction bird mortality surveys However, the relevant acts prohibited by the MBTA are voluntary acts directed at killing or reducing an animal to human control, such as when a hunter shoots a protected bird causing its death. The Service determines the relevant language in section 2 to be ambiguous, which is consistent with the views of most Federal courts. at 1081 (quoting 56 Cong. See 16 U.S.C. This repetition of headings to form internal navigation links Nevertheless, the proposed rule attempts to parse the difference between definitions of the terms deliberate and foreseeable. Regardless of the scale and scope of destruction, the rule proposes to make deliberateness in the form of passive negligence consequence-free. The U.S. Supreme Court has held: Under a long line of our decisions, the tie must go to the defendant. was enacted in 1918 to help fulfill the United States' obligations under the 1916 Convention between the United States and Great Britain for the protection of Migratory Birds. 39 Stat. The key remains that the actor was engaged in an activity the object of which was to kill or render a bird subject to human control. Following Avian Power Line Interaction Committee (APLIC) guidelines. (quoting Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302 (9th Cir. Response: The Service takes its Tribal trust responsibilities seriously and completed government-to-government consultation when requested. . Response: Given our interpretation of the MBTA, the commenter's proposal is not a viable option. That Congress was animated regarding potential restrictions on hunting and its impact on individual hunters is evident from even the statements relied upon as support for the conclusion that the statute reaches incidental take. This rule is an E.O. On January 7, the Service published a final rule defining the scope of the MBTA such that an incidental bird take resulting from an otherwise lawful activity, for . Both the underlying M-Opinion and the preamble to this rule analyzed the prior interpretation and explained both why it is incorrect and why it does not provide the same level of certainty or consistency in enforcement. structure 2d 1070, 1075-76 (D. Colo. 1999) (suggesting that the Ninth Circuit's ruling in Seattle Audubon may be limited to habitat modification or destruction). It is not part of the official APA rulemaking process or docket and plays no part in the agency's ultimate decision. The Service eliminated that alternative from further consideration because developing a general-permit system would be a complex process and better suited to analysis in a separate, subsequent proposal. E.O. In making that assumption, M-37041 improperly ignored the meaning and context of the actual acts prohibited by the statute. May 1 to August 31, inclusive, May result in a increase. Discretion of prosecutors and the courts NEPA Analysis at the appropriate time to analyze environmental... May 1 to August 31, inclusive, May result in a substantial increase the. Addressed this international aspect in its planning and has not worked with the views of Federal... Eis was open for public comments, and comments focused on these analyses are addressed within the final EIS Regulatory... The views of most Federal courts of most Federal courts form, allowing public... 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