A Pendulum Seldom Stops in the Middle: Shifting Views on 'Take' of Raptors and Other Migratory Birds

• Date: 01 July 2018
• Author: David Freudenthal, Steven P. Quarles, and Rebecca Barho

7-2018 NEWS & ANALYSIS 48 ELR 10555

COMMENTS

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 eorts 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 signicant impact on the regulated community because

it potentially creates new grounds for crimina l prosecution.

is redening 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 dicult by the lack

1. 16 U.S.C. §§703-711.

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 conicting views of the extent of take under

the MBTA.

5. 16 U.S.C. §§1531-1544; ELR S. ESA §§2-18.

6. 16 U.S.C. §§668-668d.

7. See 50 C.F.R. §10.12 (2018).

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 oces have released guidance9 t hat creates buer 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 buer zones and timing stipu-

lations established by FWS are collect ively referred to as

the FWS Buer Zone Policy). Following FWS’ lead, BLM

now imposes buers 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/

utaheldoce/Documents/MigBirds/Raptor%20Guidelines%20(v%20

March%2020,%202002).pdf; FWS, Wyoming Ecological Services Oce,

Species of Concern—Raptors in Wyoming [hereinafter Wyoming ES Guidance]

(scroll down to “Recommended Seasonal and Spatial Buers to Protect

Nesting Raptors”), https://www.fws.gov/wyominges/Species/Raptors.php

(last modied Jan. 25, 2018).

10. See U ES G, supra note 9, and Wyoming ES Guidance, supra

note 9.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.