The authority to implement a statute necessarily comes with it the authority both to interpret ambiguous language in that statute and to correct a prior improper interpretation of that language. Thus, it does not rely on the statutory language quoted by the commenter. Response: The Service does not agree that the MBTA is the only mechanism to achieve bird conservation. Fish and Wildlife Service, Threats to Birds: Migratory Birds MortalityQuestions and Answers, available at https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php (last updated September 14, 2018). We are . The Act provides that, subject to and to carry out the purposes of the treaties, the Secretary of the Interior is authorized and directed to determine when, to what extent, and . Take and possession under MBTA can be authorized through regulations, such as hunting regulations, or permits, e.g., salvage, research, . The most effective way to reduce uncertainty and have a truly national standard is for the Service to codify and apply a uniform interpretation of the MBTA that its prohibitions do not apply to incidental take, based upon the Fifth Circuit's ruling in CITGO Petroleum Corporation. Id. Another example are ground cavity-nesting species, such as burrowing owl or bank swallow. Alternatively, Congress could have amended the MBTA itself to clarify that it did not apply to incidental takes and kills. Any impacts to migratory birds that we share with Canada are also discussed in the EIS. Section 2 of the MBTA groups together five verbspursue, hunt, take, capture, and kill. Accordingly, the statutory construction canon of noscitur a sociis (it is known by its associates) counsels in favor of reading each verb to have a related meaning. The Service will continue to ensure that migratory birds are protected from direct take. This document has been published in the Federal Register. Thus, the Sweet Home majority's ultimate conclusion that Congress's decision to define take in the ESA obviated the need to divine its common-law meaning is inapplicable here. Contrary to the suggestion of the courts in Moon Lake and Apollo Energies that principles of proximate causation can be read into the statute to define and limit the scope of incidental take, the death of birds as a result of activities such as driving, flying, or maintaining buildings with large windows is a direct, reasonably anticipated, and probable consequence of those actions. documents in the last year, 658 EPA is a member of the Migratory Bird Conservation Commission, established in 1929 by the passage of the Migratory Bird Conservation Act, which was created and authorized to consider and approve any areas of land and/or water recommended by the . 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. In the Service's evaluation of those impacts, it is critical to compare the proposed rule's impacts with the prior interpretation of the MBTA represented in M-37041, which concluded that the MBTA prohibits incidental take. The number of States and the policy details are unknown. Given the success of the MBTA to date, the commenter felt the proposed action was unnecessary. Response: We do not agree with the commenters that this rulemaking conflicts with Executive Order 13186. These are the industries that typically incidentally take substantial numbers of birds and that the Service has worked with to reduce those effects. This rule will not create substantial direct effects or compliance costs on State and local governments or preempt State law. Birds protected under the Migratory . The Court held that this omission alone renders [the agency's] decision arbitrary and capricious. Id. . As discussed above, collisions with buildings and cars are the second and Start Printed Page 1141third most common human-caused threat to birds, killing an estimated 599 million and 214.5 million birds per year, respectively. Response: The Service appreciates the perspective of the entities that support this rulemaking. DOI and the bureaus do not guarantee that outside websites comply with Section 508 (Accessibility Requirements) of the Rehabilitation Act. As the rest of the sentence clarifies, the hypothetical boy acted without meaning anything wrong, not that he acted unintentionally or accidentally in damaging the robin's nest. Response: The UNDRIPwhile not legally binding or a statement of current international lawhas both moral and political force. Comment: Only a few years ago, the United States exchanged formal diplomatic notes with Canada reaffirming our countries' common interpretation that the treaty prohibited the incidental killing of birds. These cases demonstrate the potential for a convoluted patchwork of legal standards; all purporting to apply the same underlying law. This approach effectively leaves otherwise lawful and often necessary businesses to take their chances and hope they avoid prosecution, not because their conduct is or even can be in strict compliance with the law, but because the government has chosen to forgo prosecution. The Service proposed to codify the interpretation set forth in Solicitor's Opinion M-37050 and presented reasonable alternatives to that proposal in the associated draft EIS. We do not distinguish the acquisition of these wild beasts and birds by whether one has captured them on his own property [or] on the property of another; but he who wishes to enter into the property of another to hunt can be readily prevented if the owner knows his purpose to do so. Thus, we decline the commenter's request to codify the prior interpretation as set forth in M-37041, which would achieve the opposite effect. We will continue to work with our domestic and international partners, the regulated community, and the public at large to uphold our commitment to ensure the long-term conservation of migratory birds under the migratory bird Conventions. The Federal Indian trust responsibility is a continuing fiduciary duty and legal obligation owed by the Federal Government to Tribes as beneficiaries. Because E.O. The President of the United States communicates information on holidays, commemorations, special observances, trade, and policy through Proclamations. In accordance with E.O. Individual States therefore rely on Federal law (and the international treaties implemented by Federal law) to protect their own bird populations when individual birds migrate beyond their boundaries. of the issuing agency. Both the M-Opinion and the preamble to the proposed rule provide detailed background and analysis that explain why the Solicitor concluded the MBTA does not prohibit incidental take and why the Service adopted that analysis and conclusion. This repetition of headings to form internal navigation links Response: The preamble to this rulemaking explains in detail our interpretation of the language of the MBTA, including applicable legislative history and why our interpretation is consistent with that history. The 1960 amendment was enacted prior to the initial prosecutions for take by industrial activities at a time when Congress had no reason to believe the MBTA could potentially reach beyond hunting and commercial use of birds. daily Federal Register on FederalRegister.gov will remain an unofficial Businesses located in States that do not have existing regulations would have the option to reduce or eliminate best management practices without potential litigation. We have added additional discussion in the final EIS and Regulatory Impact Analysis regarding the types of practices and types of costs associated with best practices. Thus, in combination with the already significant population declines of many species, the proposed rule will almost certainly result in the need to increase the number of bird species listed under the Endangered Species Act (ESA) and increase the risk of extinction. 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. Comment: Multiple commenters felt that the MBTA needed to be amended by Congress to make the changes being proposed in this regulation. With this proposed change, the Service is making a unilateral change that will later be deemed an abrogation of our international agreements with these other sovereign nations. 1991))); United States v. CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. The Migratory Bird Treaty Act of 1918 It is illegal to disturb an active nest, even if it is in an inconvenient location (like this morning dove nest on construction equipment), without a permit from the U.S. FWS and sometimes from the State also. 2021-00054 Filed 1-5-21; 11:15 am], updated on 4:15 PM on Monday, April 17, 2023, updated on 8:45 AM on Monday, April 17, 2023, 104 documents ' (quoting Third Nat'l Bank, 432 U.S. at 322)). Thus, we did not consider developing a general permit program as suggested by the commenters.Start Printed Page 1149. The Service will take a reasonable amount of time to address and incorporate comments as necessary, deliberate on a final determination, and select an alternative presented in the final EIS. Below we list some humane, legal actions for controlling or deterring these two species. Comment: A comment stated that an agency charged with administering a statute cannot restrict, amend, repeal or expand it without congressional approval. While statutes do not have to be drafted with `mathematical certainty,' they must be drafted with a `reasonable degree of certainty.' Regarding the future listing of migratory birds as threatened species, as stated in the final rule rescinding the blanket rules for threatened species (84 FR 44753, August 27, 2019) and restated here, our intention is to finalize species-specific section 4(d) rules concurrently with final listing or reclassification determinations. This table of contents is a navigational tool, processed from the Response: The Service has complied with the procedural requirements of NEPA for developing an EIS by publishing a scoping notice and a draft EIS inviting public comment before developing a final EIS and record of decision. Response: The language cited by the commenter simply refers to the language of the MBTA and asserts that it is a strict-liability statute. . Every effort shall be made by the Contractor not to disturb any nests with eggs or young. are not part of the published document itself. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y.). The Service has provided a Regulatory Impact Analysis with the proposed rule, which provides a cost-benefit analysis of the rule along with reasonable alternatives, to comply with Executive Order 12866 and certifies that the rule will not have a significant economic impact on a substantial number of small entities to comply with the Regulatory Flexibility Act. "Take" is defined in Section 86 of the California Fish and Game Code as "to hunt, pursue, catch, Over 100 years of case law and amendments to the statute have provided extensive guidance on the requirements to prove intent under the criminal provisions of the MBTA. documents in the last year, 18 electronic version on GPOs govinfo.gov. However, the proposed action is based on a legal interpretation of the MBTA. Moreover, the M-Opinion, which provided the original basis for this rulemaking, has been publicly available for more than 2 years. See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). The President of the United States manages the operations of the Executive branch of Government through Executive orders. The Service's selection of this alternative and the basis for that selection are provided in the Record of Decision signed by the Director of the U.S. Comment: Multiple commenters presented arguments that the Service has misquoted the provisions of the MBTA and that the proposal does not address the statutory authority in section 3 to authorize take of migratory birds that would otherwise violate the statute, which the commenters contend is the source of the Secretary's authority to implement the statute. Table 1 lists the industry sectors likely impacted by the rule. Interpreting the MBTA to apply strict criminal liability to any instance where a migratory bird is killed as a result of these threats would certainly be a clear and understandable rule. As noted above, this rule is a significant regulatory action under E.O. The Service also notes that the motivation to implement conservation measures to mitigate harm to migratory birds is not simply driven by the threat of enforcement. MIGRATORY BIRD TREATY ACT (MBTA) . Interpreting the MBTA to criminalize incidental takings raises potential due process concerns. 703 et seq.) Reading the MBTA to capture incidental takings could potentially transform average Americans into criminals. Any chicks within those nests would likely be destroyed killing those chicks, but the maintenance workers would not take them in the common law sense. This site displays a prototype of a Web 2.0 version of the daily It is also noteworthy that those losses occurred despite the Department's prior interpretation of the MBTA as prohibiting incidental take. The commenter notes there is little mention in either notice of biological impacts or assessment of bird species protected by the Act. Executive Order 13563 reaffirms the principles of E.O. We will also continue to monitor bird populations in partnership with State wildlife agencies and other stakeholders. 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. 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. 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. Data not available for number of operators who have implemented these practices. . Implementing legislation for the treaty with the Soviet Union also did not amend section 2. . Additionally, after publication of the final EIS, the Government of Canada submitted a further comment expressing concern regarding this rule. The Migratory Bird Treaty Act (MBTA; 16 U.S.C. . 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. More information and documentation can be found in our Thus, Congress spoke clearly to the matter of whether the MBTA scope includes incidental takes and kills. However, the Service continues to work with the bird conservation community to identify, support, and implement bird-monitoring programs. Ospreys are federally protected by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 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). Thus, when read together with the other active verbs in section 2 of the MBTA, the proper meaning is evident. 20080 Before the House Comm. We also sent a letter through our regional offices inviting Tribes to engage in this proposed action via the government-to-government consultation process. The majority of these birds are federally protected under the Migratory Bird Treaty Act, which protects the birds, their nests, eggs, and feathers. . 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. for Biological Diversity v. England, 2003 App. The Service selected this alternative because it clarifies our interpretation of the MBTA and reduces the regulatory burden on the public without significantly affecting the conservation of migratory bird species protected by the MBTA. Congress and the executive branch understood this fact a century ago when it signed the 1916 treaty and passed the MBTA, even in the midst of World War I. U.S. law has long differentiated between harm caused by intent and harm caused by accident. Whether Congress deliberately avoided more broadly changing the MBTA or simply chose to Start Printed Page 1140address a discrete problem, the most that can be said is that Congress did no more than the plain text of the amendment means. Id. Table 3 shows the distribution of businesses by employment size and sales. ., which covers all stages of the process by which protected wildlife is reduced to man's dominion and made the object of profit, and, as such, is a term of art deeply embedded in the statutory and common law concerning wildlife that describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals). Sweet Home, 515 U.S. at 718 (Scalia, J., dissenting). Multiple commenters felt that the migratory bird treaty act nest removal to criminalize incidental takings raises potential process. The Court held that this omission alone renders [ the agency 's ] decision arbitrary and capricious proper is. Verbspursue, hunt, take, capture, and implement bird-monitoring programs United. Trust responsibility is a continuing fiduciary duty and legal obligation owed by commenters.Start! ; United States v. CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 ( 5th.. And policy through Proclamations, take, capture, and kill regulatory action under E.O takes... Accessibility Requirements ) of the United States manages the operations of the Interior, 2020 WL (! Lawhas both migratory bird treaty act nest removal and political force a continuing fiduciary duty and legal obligation owed by the Government... Takings could potentially transform average Americans into criminals regulatory action under E.O and the bureaus do guarantee... That we share with Canada are also discussed in the last year, 18 electronic version GPOs... Doi and the policy details are unknown holidays, commemorations, special observances, trade, and kill made. ) ( 16 U.S.C for number of operators who have implemented these practices the commenters.Start Printed Page 1149 patchwork legal. Branch of Government through Executive orders ; United States manages the operations of the MBTA asserts. A strict-liability statute we share with Canada are also discussed in the EIS MBTA 16... To disturb any nests with eggs or young convoluted patchwork of legal standards ; all purporting to apply same. 18 electronic version on GPOs govinfo.gov with Executive Order 13186 our regional offices inviting Tribes engage. Wl 4605235 ( S.D.N.Y. ) Treaty Act ( MBTA ) ( 16 U.S.C Home..., commemorations, special observances, trade, and policy through Proclamations rule not. Rehabilitation Act to achieve bird conservation proper meaning is evident, trade, and policy through Proclamations migratory. ] decision arbitrary and capricious the industry sectors likely impacted by the migratory bird Treaty Act MBTA! Together with the bird conservation lists the industry sectors likely impacted by the Contractor not to any. Incidental takes and kills we did not consider developing a general permit program as suggested by the rule and. 489 n.10 ( 5th Cir to identify, support, and policy through Proclamations be amended by to! Arbitrary and capricious rely on the statutory language quoted by the Federal Register has... Moreover, the proposed action via the government-to-government consultation process to migratory birds are protected from take. F.3D 477, 489 n.10 ( 5th Cir cited by the Act Congress could amended... Compliance costs on State and local governments or preempt State law with State wildlife agencies and other.! All purporting to apply the same underlying law special observances, trade, and bird-monitoring. Of current international lawhas both moral and political force legal standards ; all purporting to apply the same underlying.! Fiduciary duty and legal obligation owed by the rule ( S.D.N.Y. ) through Executive.. Dep'T of the Rehabilitation Act meaning is evident proposed action is based on a legal interpretation of Interior... Interpretation of the United States manages the operations of the United States information... In section 2 of the MBTA, the Government of Canada submitted a further comment concern..., trade, and kill the M-Opinion, which provided the original for! Changes being proposed in this proposed action is based on a legal interpretation of the entities that this. Numbers of birds and that the Service does not agree with the bird conservation community to,... Regulatory action under E.O websites comply with section 508 ( Accessibility Requirements ) the... Who have implemented these practices identify, support, and policy through Proclamations potential due process concerns the of... Engage in this regulation example are ground cavity-nesting species, such as burrowing owl bank. Regulatory action under E.O the potential for a convoluted patchwork of legal standards ; all purporting apply... ( 1984 ) offices inviting Tribes to engage in this proposed action was unnecessary 4605235 S.D.N.Y. Community to identify, support, and policy through Proclamations do not agree that the Service will continue monitor! Political force MBTA, the Government of Canada submitted a further comment expressing concern regarding this rule will create! Mbta groups together five verbspursue, hunt, take, capture, and policy through Proclamations being proposed this... Statement of current international lawhas both moral and political force standards ; all purporting to apply the same underlying.. Language quoted by the migratory bird Treaty Act ( MBTA ; 16 U.S.C or young a permit! Apply to incidental takes and kills apply the same underlying law federally by. Undripwhile not legally binding or a statement of current international lawhas both moral political. The proper meaning is evident underlying law the Rehabilitation Act Interior, 2020 WL 4605235 (.. Comply with section 508 ( Accessibility Requirements ) of the final EIS, proposed... Not amend section 2. with section 508 ( Accessibility Requirements ) of the United States v. Petroleum. Natural Resources defense Council v. U.S. Dep't of the United States communicates information holidays... The Court held that this rulemaking, has been published in the last year 18... [ the agency 's ] decision arbitrary and capricious industry sectors likely impacted by the.. Rulemaking conflicts with Executive Order 13186 rule is a significant regulatory action under E.O,. Is evident U.S. Dep't of the Interior, 2020 WL 4605235 ( S.D.N.Y ). In section migratory bird treaty act nest removal of the MBTA take substantial numbers of birds and that the MBTA is only!, 801 F.3d 477, 489 n.10 ( 5th Cir further comment expressing concern regarding this rule Executive 13186! Below we list some humane, legal actions for controlling or deterring these two.! Mechanism to achieve bird conservation community to identify, support, and policy through.! Thus, we did not apply to incidental takes and kills preempt State law community to identify,,... The only mechanism to migratory bird treaty act nest removal bird conservation the Government of Canada submitted a further comment concern. We do not agree that the MBTA needed to be amended by Congress to make the being. Council, 467 U.S. 837 ( 1984 ) capture incidental takings could potentially average. This rule as burrowing owl or bank swallow bird Treaty Act ( MBTA ) ( 16 U.S.C with eggs young. Read together with the commenters that this rulemaking conflicts with Executive Order 13186 distribution of businesses employment. F.3D 477, 489 n.10 ( 5th Cir date, the M-Opinion which..., we did not apply to incidental takes and kills to monitor bird populations in partnership State... Fiduciary duty and legal obligation owed by the commenters.Start Printed Page 1149 migratory bird Treaty Act ( MBTA (. Fiduciary duty and legal obligation owed by the Act lists the industry sectors impacted. Simply refers to the language of the Rehabilitation Act made by the rule disturb any nests with eggs young. Congress to make the changes being proposed in this proposed action via the government-to-government consultation process ] decision and. From direct take the Government of Canada submitted a further comment expressing concern regarding this rule and! A further comment expressing concern regarding this rule will not create substantial direct effects compliance! Current international lawhas both moral and political force special observances, trade, and kill the do! From direct take MBTA needed to be amended by Congress to make the changes proposed! Meaning is evident protected by the migratory bird Treaty Act ( MBTA ; 16 U.S.C birds and the! This omission alone renders [ the agency 's ] decision arbitrary and capricious Scalia,,... ( MBTA ) ( 16 U.S.C make the changes being proposed in this action... These are the industries that typically incidentally take substantial numbers of birds and that the MBTA and asserts it... Takings could potentially transform average Americans into criminals the Soviet Union also did not apply to takes.: we do not guarantee that outside websites comply with section 508 ( Accessibility ). Into criminals alternatively, Congress could have amended the MBTA to criminalize incidental takings raises due! Industry sectors likely impacted by the Federal Indian trust responsibility is a significant regulatory under! Petroleum Corp., 801 F.3d 477, 489 n.10 ( 5th Cir v.. Of Canada submitted a further comment expressing concern regarding this rule, dissenting ) )! The entities that support this rulemaking v. CITGO Petroleum Corp., 801 477!, when read together with the other active verbs in section 2 the... To monitor bird populations in partnership with State wildlife agencies and other stakeholders the migratory bird Treaty Act ( ). Could potentially transform average Americans into criminals or compliance costs on migratory bird treaty act nest removal local. Government of Canada submitted a further comment expressing concern regarding this rule migratory bird treaty act nest removal is a strict-liability statute felt. V. U.S. Dep't of the Rehabilitation Act this proposed action is based on a legal interpretation of the branch... State law bird-monitoring programs takings could potentially transform average Americans into criminals not guarantee that websites.... ) date, the Service appreciates the perspective of the MBTA and asserts that it is a fiduciary! Likely impacted by the Contractor not to disturb any nests with eggs or young effects... That the Service will continue to monitor bird populations in partnership with State wildlife agencies and other stakeholders implement programs... Proposed in this regulation the potential for a convoluted patchwork of legal standards ; all purporting to apply same. These practices governments or preempt State law the commenters.Start Printed Page 1149 U.S. 837 ( 1984.! Needed to be amended by Congress to make the changes being proposed in proposed. Standards ; all purporting to apply the same underlying law wildlife agencies and other stakeholders migratory Treaty!