Incidental Take Permits Under The Migratory Bird Treat Act — Why Is This So Difficult?

Last week, the Fish and Wildlife Service issued a proposed rule that would revoke the rule promulgated by the Trump Administration in January 2021 and return to the prior status quo, in which the incidental take of birds subject to the Migratory Bird Treaty Act constituted a violation of the Act. I'm not taking a position on the proposal. I don't think it's as clear-cut as my friends in the environmental movement seem to believe. To me, it's not crazy to conclude that the MBTA was intended to apply only to intentional takes, rather than including incidental takes.

I do agree that a migratory bird is equally dead, whether as the result of intentional or inadvertent action. From an environmental perspective, all bird deaths are equally important. And what's inadvertent today may be subject to control in the long run with the right incentives in place.