New Migratory Bird Treaty Act Rule – Unlikely To Take Flight?

On January 7, 2021, the U.S. Fish and Wildlife Service published a final rule in the Federal Register  codifying the Trump Administration's interpretation that the Migratory Bird Treaty Act's (MBTA) prohibition on taking protected species only applies to purposeful take. The Trump Administration initially introduced this interpretation through a December 2017 Department of the Interior (DOI) legal opinion.

On August 11, 2020, the U.S. District Court for the Southern District of New York vacated the DOI's legal opinion, holding that DOI's interpretation that the MBTA is limited to actions directed at migratory birds is contrary to the plain language of the MBTA. Nevertheless, the final rule mirrors the DOI opinion and establishes that the MBTA does not criminalize takings that occur incidental to otherwise lawful activities, such as the operation of power lines or renewable energy facilities.