In a long-unfolding saga, on January 7, 2021, the U.S. Fish and Wildlife Service (FWS) published its final rule that will at long last establish a clear regulatory definition of the scope of liability under the Migratory Bird Treaty Act of 1918 (MBTA). The rule codifies the Trump administration’s oft-criticized interpretation that the MBTA criminal prohibitions apply only to actions “directed” at migratory birds, and not to actions that “incidentally take” them. Energy, construction, mineral extraction, and nearly any industry with outdoor operations will benefit from the new rule’s common sense standard for MBTA liability. It is uncertain how long the ovation will last, however, given both the impending change of administrations and long line of environmental groups already forming to challenge the rule.

The MBTA is a strict liability statute that carries criminal penalties for any act that “takes” a migratory bird. Federal courts across the nation have long disagreed over whether the MBTA applies to actions that incidentally take migratory birds: thus, depending on where it happens, incidentally taking a migratory bird while carrying out otherwise lawful activities could mean exposure to criminal liability or no liability at all. Although the stakes are high, until now, industry has had to rely primarily upon implementing stringent impact avoidance measures, FWS’s prosecutorial discretion, and internal agency policies to avoid liability.

The Trump administration has sought to reduce that uncertainty by establishing a uniform definition of “take” under the MBTA. In a December 2017 legal opinion, the administration concluded that “the text, history, and purpose of the MBTA” all indicate that the take prohibition only applies “to affirmative actions that have as their purpose the taking or killing of migratory birds” and does not criminalize incidental take. The rule codifies this interpretation of the statute.

If the rule stands, it will provide a long-sought standard for the scope of MBTA liability. But whether it stands is uncertain. First, while the rule is “final,” it will not take effect until February 8, 2021. That likely spells trouble for the rule because the incoming Biden administration, like the Trump administration before it, is expected to issue a moratorium on all regulations under development as of Inauguration Day. For regulations like this rule that have been published in the Federal Register but have not yet taken effect, an executive moratorium of this sort likely will direct agency heads to consider extending the effective date and, potentially, re-opening the notice-and-comment period. The rule could go anywhere from there, including on the cutting room floor. Second, and more pointedly, the Trump administration’s legal opinion preceding the rule was recently vacated by the U.S. District Court of the Southern District of New York. The court held that the interpretation of the MBTA in the legal opinion, which now is mirrored in FWS’s new rule, is contrary to the plain language of the statute. Environmental groups are certain to challenge the rule on similar grounds. So, while the arrival of the new MBTA rule is a welcome development for the regulated community, it might be a short stay. In the near-term, regulated entities should continue to consider proactive strategies to avoid and mitigate their operations’ potential impacts on migratory birds.

Beveridge & Diamond’s Endangered Species and Wildlife Protection practice group provides strategic counseling and compliance advice to project proponents in all industries to minimize the impacts of threatened and endangered species listings and critical habitat designations on our clients’ activities. For more information, please contact the authors.