The Solicitor’s Office of the U.S. Department of the Interior (DOI) released a memorandum on December 22, 2017 providing the Solicitor’s Opinion that the Migratory Bird Treaty Act (MBTA) does not prohibit incidental take. Opinions issued by the Solicitor’s Office set the direction in how the Department applies and interprets the laws under which its agencies operate. The opinion, M-37050, permanently withdraws and replaces an opinion issued by the former department solicitor on January 10, 2017 that concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” That opinion was suspended on February 6, 2017 pending further review and the current memorandum reflects the new administration’s legal interpretation on how they will enforce the law.

According to M-37050: “Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed. As Justice Marshall warned, ‘the value of a sword of Damocles is that it hangs-not that it drops.’ Indeed, the mere threat of prosecution inhibits otherwise lawful conduct.”

There are conflicting court interpretations as to whether the MBTA prohibits incidental take. Federal Courts of Appeal and district courts have found that the act does criminalize some instances of incidental take while other courts have held that it does not. Those findings against the concept of incidental take were often in response to lawsuits regarding habitat destruction while findings supporting incidental take were in response to specific actions, like discharge of chemicals, that specifically killed birds. The opinion finds that the “scope of liability” for incidental take is virtually unlimited citing the FWS list of top threats to migratory birds – including cats, collisions with automobiles and buildings, etc – and the estimated number of birds killed.

The opinion continues: “Reading the MBTA to capture incidental takings casts an astoundingly large net that potentially transforms the vast majority of average Americans into criminals. Rather than relying on clear standards that are known in advance, prosecutors are asserting authority to bring cases where individuals and companies are not taking the precautions that the government and the court deem “reasonable.” This approach effectively substitutes the judgment of the court for that of the Congress, which made the MBTA a strict-liability offense and did not provide for mitigation measures. Such an approach presents precisely the sort of recipe for arbitrary and discriminatory enforcement that the Supreme Court has cautioned against.”

Using this case history and the specific text and purpose of the law, the Solicitor’s Office concludes the law requires affirmative and purposeful action. “[C]onsistent with the text, history, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.”

The ramifications of the opinion will change how the Department reviews projects and how it may enforce the law against companies or individuals who cause migratory bird fatalities. As a result, the opinion has created significant concern within the conservation community. In response to the Department’s action, a group of 17 former DOI and Fish and Wildlife Service leadership, including former migratory bird chiefs, sent a letter on January 10 to Secretary of the Interior Ryan Zinke calling on him to suspend the opinion and convene a bipartisan group of experts to develop a “sensible path forward”.

“All the past administrations for which we have worked have struck a balance and worked diligently and in good faith with industries that had significant impacts on birds, such as oil and gas, coal, electric utilities, commercial fishing, communications, transportation, national defense, and others to reasonably address unintended take. It can be done. In fact, it has been done,” the letter states. “The MBTA can and has been successfully used to reduce gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm. Your new interpretation needlessly undermines a history of great progress, undermines the effectiveness of the migratory bird treaties, and diminishes U.S. leadership.”

The memorandum expresses the Department’s new legal opinion on the interpretation of the MBTA, it does not change specific policy or regulations. As a result, the finding does not require public review and comment and will serve as overarching direction for the Department until it is specifically overturned.