IT'S FOR THE BIRDS--RECENT DEVELOPMENTS UNDER THE MIGRATORY BIRD TREATY ACT AND BALD AND GOLDEN EAGLE PROTECTION ACT1

JurisdictionUnited States
Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)

CHAPTER 10A
IT'S FOR THE BIRDS--RECENT DEVELOPMENTS UNDER THE MIGRATORY BIRD TREATY ACT AND BALD AND GOLDEN EAGLE PROTECTION ACT1

Sandra A. Snodgrass
Holland & Hart LLP,
Denver, Colorado

SANDRA A. SNODGRASS (Program Chair) provides effective counsel to natural resource developers and other clients regarding various aspects of NEPA compliance and litigation, selection of third-party contractors, ESA Section 7 consultation and litigation, evaluation of habitat conservation plans and candidate conservation agreements, the species listing process, development of avian and bat protection plans, Section 404 permits, federal land right-of-way grants, and voluntary conservation agreements. She represents clients on matters involving the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, the Clean Water Act, and the Federal Land Policy Management Act. Ms. Snodgrass joined Holland & Hart in 1999 after graduating from Northwestern University School of Law.

I. Introduction

A. Overview of the MBTA and BGEPA

Enacted in 1918, the Migratory Bird Treaty Act (MBTA)2 is a federal law that protects over 1,000 species of migratory birds. The Bald and Golden Eagle Protection Act (BGEPA),3 enacted in 1940, is a federal law that specifically protects bald and golden eagles. Each statute is administered by the U.S. Fish and Wildlife Service (Service) and makes it unlawful to, among other things, kill, wound, or "take" the avian species protected by such statute. Each statute also subjects violators to strict liability, with the potential for significant penalties and/or imprisonment.4

Although they have been on the books for decades, the MBTA and BGEPA have recently received greater attention by the Service, conservation organizations, and the regulated community than ever before. These two statutes--one sweeping in nature, the other covering just two species--have the potential to cause significant delay in project development, impose considerable costs both pre- and post-construction, and expose project developers to risk of unauthorized take and significant penalties.

This paper discusses the legal framework of the MBTA and BGEPA, recent developments in their implementation and enforcement, and options for managing risks under these statutes. It also describes a possible approach for establishing a permitting program to authorize incidental take under the MBTA, which would help lessen the uncertainty project developers currently face under that statute.

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B. Obstacles Posed by the MBTA and BGEPA

While violation of the MBTA is a strict liability crime, the ability to obtain authorization for take of migratory birds, and thus avoid such strict liability, is extremely limited. No permit is available for the incidental take of migratory birds that occurs during the course of otherwise lawful activities. Consequently, any time a migratory bird flies into your house or your car, you are technically in violation of the MBTA. The Service obviously has no ability or desire to prosecute MBTA violations of this nature, so it exercises its prosecutorial discretion and currently focuses its enforcement efforts on serious violations. But this reliance on the exercise of prosecutorial discretion provides little comfort or certainty to project developers who are trying to obtain financing and manage project risks.

In 2009, enforcement actions for violations of the MBTA resulted in multi-million dollar penalties for a large electrical transmission company5 and a major oil and gas production company.6 These enforcement actions, discussed further below, have grabbed the attention of industry, highlighting the potential risks of MBTA non-compliance. With recent studies showing widespread declines in bird populations in the United States,7 prosecution for violations of the MBTA is likely to increase as the Service carries out its mission to protect migratory birds. Without a permit mechanism to allow the incidental take of migratory birds as a result of development activities, project proponents have no assurance they can avoid potentially costly MBTA enforcement actions.

In addition to increased enforcement, the Service has begun to expect more from project developers in terms of migratory bird monitoring and conservation efforts, both before and after project construction. With the ever-present specter of strict liability for unauthorized take--and no possibility of obtaining authorization for such take--project developers have little choice but to accede to the Service's demands or else risk prosecution if take occurs (and with so many common species protected under the MBTA, take is almost certain to occur at some point during the life of a project). Adding to this difficulty is the fact that the Service's application of the MBTA has varied among projects and between regions, leading to inconsistent obligations among project developers.

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The 2007 delisting of the bald eagle from the list of threatened and endangered species under the Endangered Species Act (ESA)8 resulted in increased focus on BGEPA to ensure continued protection of the species.9 The Service strengthened BGEPA's take prohibitions and created a permit program to allow non-purposeful take of bald and golden eagles. This new permit program, still in its infancy, has already caused a great deal of concern for project developers, especially those in the renewable energy industries. With a declining population of golden eagles in the western United States, the Service's impetus to implement and enforce the program is increased.

II. Legal Framework

A. MBTA
1. Purpose of the MBTA

The MBTA was adopted over 90 years ago to protect migratory birds from unregulated hunting, spurred on by the extinction of the passenger pigeon through market hunting. It carries out the United States' commitment to four international conventions with Canada, Japan, Mexico, and Russia, respectively, which protect birds that migrate across international borders. Although the primary purpose of the MBTA is the prevention of unregulated hunting of migratory birds,10 the statute has been applied to industrial operations that inadvertently harm migratory birds.

2. Species Covered

The MBTA applies to over 1,000 species of migratory birds native to the United States or its territories that are specifically identified in the previously named treaties.11 Protected species include songbirds, waterfowl, shorebirds, seabirds, wading birds, and raptors.12 The MBTA covers bird species that are common, such as the American crow and the mourning dove, and those whose populations are thought to be in decline, such as the golden eagle.13

3. Statutory Protections

The MBTA makes it unlawful to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, [or] possess . . . any migratory bird or any part, nest, or egg of any such bird," named in the four treaties, unless expressly permitted by federal regulations.14 The applicable

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regulations define "take" to mean to "pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to" do any of the foregoing acts.15

While the MBTA creates liability for unintended bird deaths, it does not require public or private entities to engage in planning or to undertake mitigation measures to minimize the potential for unintended bird deaths. Further, the MBTA neither directs nor requires consultation between the Service and other federal agencies or third parties before such entities undertake an action that may result in unintended harm to migratory birds.

Although the MBTA does not include a consultation provision, federal agencies may have an obligation to ensure that their own actions do not result in violations of the MBTA. In Humane Society of the United States v. Glickman,16 the D.C. Circuit held that the MBTA is applicable to federal agency action.17 There, plaintiffs brought action against government officials to enjoin implementation of a management plan for Canada geese, which did not require the Department of Agriculture to seek a permit before taking or killing such birds.18 The court held that the Department was not exempt from the MBTA's take prohibition and violated the Act by failing to obtain a permit from the Service prior to implementing its management plan for Canada geese.19 In addition, in 2000, the Service issued Director's Order 131, which clarified the Service's position that federal agencies are subject to the permit requirements of the MBTA.20

4. Permits Available

Currently, permits may be obtained to import migratory birds, collect migratory birds for scientific purposes, or destroy depredating (i.e., predatory or destructive) migratory birds.21 In addition, "special purpose" permits may be obtained for activities related to migratory birds, parts, nests, or eggs when there is "a sufficient showing of benefit to the migratory bird resource, important research reasons, reasons of human concern for individual birds, or other compelling justification."22 However, permits are not generally available for incidental take of

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migratory birds during otherwise lawful activities, such as mining, oil and gas exploration and development and operation of wind power and solar facilities.

5. Penalties

The MBTA imposes significant penalties on violators of the Act. Under the general misdemeanor provision of the MBTA, a violator may be subject to penalties of up to $15,000, imprisonment for up to six months for an unauthorized take of a protected bird, or both, regardless of intent.23 Under the felony provision of the MBTA, whoever knowingly takes a protected migratory bird with intent to sell such bird or whoever knowingly sells a protected migratory bird may be subject to...

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