7-2018 NEWS & ANALYSIS 48 ELR 10555
A Pendulum Seldom Stops in the
Middle: Shifting Views on “Take” of
Raptors and Other Migratory Birds
by David Freudenthal, Steven P. Quarles, and Rebecca Barho
David Freudenthal is a former Governor of Wyoming and U.S. Attorney for the District of Wyoming. Steven P. Quarles is
a Partner in Nossaman, LLP, in Washington, D.C. Rebecca Barho is an Associate in Nossaman LLP, in Austin, Texas.
The Migratory Bird Treaty Act (MBTA)1 makes it
unlawful to, among other things, “take” and “kill”
migratory birds.2 Current MBTA discussions focus
on the split among ve federal circuit courts of appeals3
and between two U.S. Department of the Interior (DOI)
Solicitor’s Opinion s4 as to whether the MBTA prohibits
indirect or unintentional take or ki lling of migratory birds
that occurs in connection with otherwise lawful activities.
is is due, in part, because little notice has historically
been given to the eorts of DOI’s U.S. Fish and Wildlife
Service (FWS) to expa nd the terms “take” and “kill” found
within the MBTA to include the concepts of “harass,”
“harm,” “molest,” and “disturb,” which exist only in the
Endangered Species Act (ESA)5 and the Bald a nd Golden
Eagle Protection Act (BGEPA),6 and are not present in the
MBTA or its implementing regulations.7 FWS’ expansion
of the activities that constitute “take” or “k ill” under the
MBTA has been accomplished principally through issu-
ance of policy and gu idance doc uments without rulemak-
ing or opportunities for public comment. Yet, it may have
a signicant impact on the regulated community because
it potentially creates new grounds for crimina l prosecution.
is redening of MBTA “take” might not be resolved
by litigation or additional administrative actions. Judicial
resolution is unlikely or distant without a U.S. Supreme
Court decision tackling t he split in circuits. However, rst,
no litigation is pending in any circuit court that could be
a vehicle for Supreme Court review and, second, the l-
ing of new litigation that might ultimately wend its way to
the Supreme Court has been rendered dicult by the lack
2. Id. §703.
3. e split in the circuits is described in greater detail in Part IV below.
4. As described in Part II.D. below, DOI Solicitor’s Opinions concerning
migratory birds issued a year apart under the Barack Obama and Donald
Trump Administrations adopt conicting views of the extent of take under
of a citizen suit provision in the MBTA and the expected
absence of enforcement under the Donald Trump Admin-
istration occasioned by the most recent solicitor’s opinion.
Moreover, much of the FWS’ activities with respect to the
MBTA occur pursuant to internal agency g uidance that
may be unreviewable and is likely to change with succeed-
ing presidential elections.8
e most immediate and practical i mpacts of this expan-
sion are felt by industries operating on lands controlled or
managed by DOI’s Bureau of Land Management (BLM)
(i.e., public lands). Certain of t he FWS Ecologica l Services
eld oces have released guidance9 t hat creates buer or
no-occupancy zones of one-quarter to one mile around
occupied and unoccupied raptor nests during time periods
of up to eight months (these buer zones and timing stipu-
lations established by FWS are collect ively referred to as
the FWS Buer Zone Policy). Following FWS’ lead, BLM
now imposes buers and timing stipulations relating to
raptors (BLM Raptor Policies)10 on regulated entities that
seek permits, leases, or other approvals on public lands.
Failure of a regulated entity to follow these recommen-
dations not only may freeze negotiation of the relevant
BLM approvals, but also may expose that entity to poten-
tial crimina l prosecution under the MBTA, which is a
strict liability statute and, u nlike the ESA and the BGEPA,
8. However, we can be sure litigants will seek creative ways to design litigation
that would pass muster in federal courts. Indeed, two lawsuits have already
been led that challenge the most recent Solicitor’s Opinion on Adminis-
trative Procedure Act and National Environmental Policy Act grounds, as
discussed in Part VIII.C. below.
9. L A. R J A. M, FWS, U F O G-
R P F H L D
(2002) [hereinafter U ES G], available at https://www.fws.gov/
March%2020,%202002).pdf; FWS, Wyoming Ecological Services Oce,
Species of Concern—Raptors in Wyoming [hereinafter Wyoming ES Guidance]
(scroll down to “Recommended Seasonal and Spatial Buers to Protect
Nesting Raptors”), https://www.fws.gov/wyominges/Species/Raptors.php
(last modied Jan. 25, 2018).
10. See U ES G, supra note 9, and Wyoming ES Guidance, supra
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.