DOI Reverses Course and Declares Migratory Bird Treaty Act Does Not Prohibit Incidental Take
In a legal memorandum (the “Jorjani Memo”) issued on December 22, 2017, the U.S. Department of the Interior (“DOI”) concluded that the MBTA’s prohibition of taking migratory birds only applies to intentional take and does not prohibit incidental take.1 This is an important change in policy for any industry which could incidentally take migratory birds, including electric transmission, renewable energy generation, oil and gas development, mining, and many others.
The Migratory Bird Treaty Act (“MBTA”) makes it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess…any migratory bird…or any part, nest, or egg of any such bird.”2 The Jorjani Memo addresses a decades-long debate among environmentalists, industrial operators, regulators, and legal scholars as to whether the MBTA was intended to prohibit “incidental” or unintentional take of migratory birds. This memo is a significant departure from previous DOI memos, which interpreted the MBTA as prohibiting the unauthorized “incidental take” of migratory birds.3 In issuing the Jorjani Memo, DOI simultaneously withdrew a previous legal memo on this same issue which was released less than one year ago (under the Obama Administration) which directly conflicts with the Jorjani Memo.
The Federal Circuit Courts are also divided on the issue. The Fifth, Eighth, and Ninth Circuits have concluded that the MBTA applies only to intentional take and does not prohibit incidental take.4 On the other hand, the Second and Tenth Circuits have held that the MBTA prohibits not only intentional take but also unintentional take, which may include take resulting from contact with industrial wastewater ponds, power lines, wind turbines or solar arrays.
The DOI’s previous position was that the MBTA prohibited any industrial or commercial activity that accidentally caused the taking of a migratory bird where there was “a close causal connection between an action and its effect of taking migratory birds.” The Jorjani Memo outlined some of the top threats to migratory birds, which were potentially subject to criminal enforcement under the DOI’s previous interpretation of the MBTA, including:
- Domestic cats (domestic cats kill an estimated 2.4 billion birds annually)
- Buildings with glass windows (collisions with windows kill an estimated 303.5 million bird annually)
- Driving (collisions with vehicles kill an estimated 200 million birds annually)
- Electrical transmission (collisions with electrical lines kill an estimated 25 million birds annually)
- Oil and gas production (oil pits kill an estimated 750 thousand birds annually)
- Wind turbines (collision with wind turbines kill an estimated 174 thousand birds annually)5
In an effort to limit the scope of potential criminal enforcement actions under the MBTA, the DOI has historically relied on prosecutorial discretion.6 The Jorjani Memo referred to this threat of enforcement, which could include up to six months of jail time and a $15,000 penalty for each bird injured or killed, as a “sword of Damocles over a host of otherwise lawful and productive actions.”7 According to the memo, such subjectivity left industry and individual citizens uncertain as to what the law required:
Reading the MBTA to capture incidental takings cast an astoundingly large net that potentially transforms the vast majority of average Americans into criminals. Rather than relying on clear standards that are known in advance, prosecutors are asserting authority to bring cases where individuals and companies are not taking the precautions that the government and the court deem “reasonable.”8
This policy has resulted in enforcement actions and costly compliance requirements for wind and solar energy development, oil and gas development, mining operations, as well as many other industrial activities. The Jorjani Memo is significant, not only due to its reversal of long-standing agency policy, but because it immediately reduces the risk of criminal liability for industrial operators who are undertaking legal activities that are not intended to harm migratory birds, but may indirectly result in bird deaths.
It is not clear whether the Jorjani Memo will face legal challenges or whether the next Presidential Administration will revert back to the previous DOI policies under the MBTA. However, it is clear that the current Administration does not intend to seek criminal penalties against industrial operators which incidentally take migratory birds during otherwise legal activities.
1 Dept. of the Interior, M-37050 (Dec. 22, 2017).
2 16 U.S.C. §§ 703-712.
3 Dept. of the Interior, Memorandum M-37041 (Jan. 10, 2017).
4 United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015); Newton County Wildlife Association v. U.S. Forest Service, 113 F. 3d 110 (8th Cir. 1997); Seattle Audubon Society v. Evans, 952 F.2d 297,303 (9th Cir. 1991)
5 Memorandum M-37050 at 34.
6 USFWS “focuses its enforcement efforts under the MBTA on industries or activities that chronically kill birds and has historically pursued criminal prosecution under the Act only after notifying an industry of its concerns regarding avian mortality, working with the industry to find solutions, and proactively educating industry about ways to avoid or minimize take of migratory birds.” 80 Fed. Reg. 30034.
7 Memorandum M-37050 at 1.
8 Id. at 40.