migratory bird treaty act nest removal

See Natural Res. Under very limited circumstances, the Service may issue permits to take active nests. Response: There is no statutory or other legal requirement to wait for a Departmental legal opinion or any other agency opinion to be vetted in Federal court before it can be codified as a regulation. Since the Small Business Size Standard is less than 1,000 employees, we assume all businesses are small. Based upon the Service's analysis of manmade threats to migratory birds and the Service's own enforcement history, common activities such as owning and operating a power line, wind farm, or drilling operation pose an inherent risk of incidental take. Not all small businesses will be impacted by this rule. Comment: Multiple commenters stated that Solicitor's M-Opinion 37050 stands in direct conflict with Executive Order 13186 executed by President Start Printed Page 1155Clinton in 2001. According to the Service, this absence of regulations designed to address incidental take, and the reliance instead on discretionary enforcement, has resulted in regulatory uncertainty and inconsistency, thus necessitating a truly national standard and a uniform approach to implementation of the MBTA. Congress enacted the relevant provision in the wake of a case in which the court enjoined specific U.S. Navy live-fire training exercises that incidentally killed migratory birds. Response: The EIS associated with this rulemaking analyzes the difference between adopting an interpretation of the MBTA that excludes incidental take and the prior interpretation that the MBTA prohibits incidental take. Register (ACFR) issues a regulation granting it official legal status. For the selected industries, we do not provide further analysis because minimal effects are expected on small businesses relative to an environmental baseline based on current regulations and voluntary conservation measures, due to the fact that mitigation costs are small relative to the cost of projects (see Table 7). Executive Order 13563 reaffirms the principles of E.O. Additionally, the NRDC court found no meaningful difference between active and passive definitions of the term kill. The court focused on one possible reading of kill, meaning to deprive of life, which could be construed as either active or passive conduct. If promulgated, the rule would force Service employees to act as private detectives with the nearly (and from all appearances, deliberately) impossible task of proving what was in the hearts and minds of violators. This conclusion is also supported by the Service's longstanding implementing regulations, which define take to mean to pursue, hunt, shoot, wound, kill, trap, capture, or collect or attempt to do the same. Thus, we disagree with the commenter's assertion that this rule restricts or alters the meaning or intent of the MBTA. The NRDC court countered that referencing different manners of taking birds does not give effect to the by any means and in any manner language, but instead clarifies the term hunt because the referenced activities are primarily different means of hunting. As is apparent from the record in this case, the Forest Service must comply with a myriad of statutory and regulatory requirements to authorize even the very modest type of salvage logging operation of a few acres of dead and dying trees at issue in this case. Only Congress can amend statutory language. In its current form, section 2(a) of the MBTA provides in relevant part that, unless permitted by regulations, it is unlawful: at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof. The list of birds now protected as `migratory birds' under the MBTA is a long one, including many of the most numerous and least endangered species one can imagine. Mahler, 927 F. Supp. 78 FR 65,844, 65,845 (Nov. 1, 2013); see also 50 CFR 10.13 (list of protected migratory birds); Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 FR 30032, 30033 (May 26, 2015) (Of the 1,027 currently protected species, approximately 8% are either listed (in whole or in part) as threatened or endangered under the Endangered Species Act (ESA) (16 U.S.C. In making that assumption, M-37041 improperly ignored the meaning and context of the actual acts prohibited by the statute. This analysis really shows that the benefits of the proposed rule are overblown and targeted to a few companies that just do not want to be regulated. 237). The Migratory Bird Treaty Act (MBTA; 16 U.S.C. Average number of pits per business is unknown. We will also continue to monitor bird populations in partnership with State wildlife agencies and other stakeholders. 2015) (Even if `kill' does have independent meaning [from `take'], the Supreme Court, interpreting a similar list in the [Endangered Species Act], concluded that the terms pursue, hunt, shoot, wound, kill, trap, capture, and collect, generally refer to deliberate actions); cf. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. But the court was silent as to how far this rule extends, even in the relatively narrow context of pesticides. Table 3Crude Petroleum and Natural Gas Extraction NAICS 21111: Employment Sizes and Sales1. Comment: One commenter recommended that the Service consider to what extent the proposed rule may increase regulatory uncertainty for industrial entities and other stakeholders. However, States may decide to expend resources for conservation and recovery of these species due to this rulemaking. The Department and the Service cannot ethically, legally, or morally make enforcement of Federal law a moving target for the convenience of the regulated industry. Thirteen States have regulations governing the treatment of oil pits, such as netting or screening of reserve pits, including measures beneficial to birds. The proposed rulemaking extends that practice to the MBTA. 04/17/2023, 211 Counts are subject to sampling, reprocessing and revision (up or down) throughout the day. . documents in the last year, 82 Even visitation to these rookeries by people getting too close and subsequently disrupting nesting activities, can result in take since young birds may be frightened, leave their nests prematurely, become displaced, and die from starvation as their parents return only to the vicinity of the nest site. We disagree that this rulemaking will have a substantial impact on migratory bird populations when compared to prior agency practice. According to the proposed rule, Congress's purpose in enacting the MBTA was to regulate the hunting of migratory birds, and thus the broad prohibitions on any taking or killing of migratory birds without authorization from the Service should be construed so as not to encompass any taking or killing other than that specifically directed at migratory birds. Comment: Multiple commenters claimed that because the new Solicitor's Opinion rests on but does not resolve the Circuit court split indicates that courts are not obligated to adhere to its interpretation. It can be difficult to detect whether birds or viable eggs are in a cavity. Thus, we respectfully decline to adopt the commenter's proposed language. Exceptions are allowed for hunting . Use the PDF linked in the document sidebar for the official electronic format. Response: The commenters are correct that only Congress can amend the language of the MBTA. Permit holders would have no risk of prosecution provided they comply with the terms of the permit. Any chicks within those nests would likely be destroyed killing those chicks, but the maintenance workers would not take them in the common law sense. Our authority derives from the Migratory Bird Treaty Act of 1918, as amended (MBTA; 16 U.S.C. We will continue to work with our domestic and international partners, the regulated community, and the public at large to uphold our commitment to ensure the long-term conservation of migratory birds under the migratory bird Conventions. that agencies use to create their documents. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Comment: One commenter suggested amending the proposed regulatory Start Printed Page 1147language by adding: provided that the person, association, partnership, or corporation takes reasonably practicable precautionary measures to prevent the taking or killing of migratory birds. In its announcement, the United States explained that it recognizes the significance of the Declaration's provisions on free, prior-and-informed consent, which the United States understands to call for a process of meaningful consultation with Tribal leadersbut not necessarily the agreement of those leadersbefore the actions addressed in those consultations are taken. Natural Res. It is important to note that the MBTA should not be relied upon by itself to reduce large-scale impacts on migratory bird populations, whether or not it is interpreted to prohibit incidental take. As the rest of the sentence clarifies, the hypothetical boy acted without meaning anything wrong, not that he acted unintentionally or accidentally in damaging the robin's nest. Id. Alternatively, Congress could have amended the MBTA itself to clarify that it did not apply to incidental takes and kills. Therefore, the Supreme Court's holding in Bostock does not apply here. We refer the commenter to the analysis of the economic impacts of interpreting the scope of the statute to prohibit incidental take in the EIS and regulatory impact analysis conducted to comply with Executive Orders 12866, 13563, and 13771. This repetition of headings to form internal navigation links Focusing on that difference and reading the term kill in relation to the other prohibited actions in section 2 before it, there is a compelling reason to read the term kill in an active sense. Articles II through IV of the Convention create closed periods during which hunting of migratory species covered by the Convention may be authorized only for limited purposes, such as scientific use Start Printed Page 1139or propagation. Table 6 shows example costs of some of the mitigation measures. The Service will continue to monitor migratory bird species, particularly species of concern and candidates for listing under the ESA. Further, as a practical matter, inconsistency and uncertainty are built into the MBTA enforcement regime by virtue of a split between Federal Circuit Courts of Appeals. . Cable & Telecommunications Ass'n v. Brand X internet Svcs., 545 U.S. 967 (2005). Response: The intent of this rulemaking is not to harm States, but to interpret the MBTA in the manner Congress intended when it drafted and enacted the statute. 2. Comment: The Service cannot conduct a credible NEPA process based on the timeline and chronology it has presented at this point. Even though destruction of nest by itself is not prohibited under the MBTA, nest destruction that results in the unpermitted take ofmigratory birds, or their eggs, is illegal and fully prosecutable under the MBTA. 2002), vacated on other grounds sub nom. They asserted that the inclusion of 28 statements of support for this proposed rule within the rulemaking announcement establishes a record of pre-decisional collusion with certain interest groups by a regulatory agency that has tainted the entire rulemaking process and clouded the ultimate decision the Service will be called upon to make, once the comment period closes and all public testimony is fairly and impartially evaluated. 10, 1972, 23 U.S.T. 4647. Response: The Service did not collude with any stakeholders, industry or otherwise, on the contents of the proposed rule before it was published in the Federal Register. The act included a broad range of prohibitions . The U.S. Supreme Court has ruled that the interpretation of a statute that would lead to absurd results must be avoided in favor of other interpretations consistent with the legislative purpose.. 55 Cong. . (quoting SEC v. Nat'l Sec., Inc., 393 U.S. 453, 466 (1969)); Beecham v. United States, 511 U.S. 368, 371 (1994) (the fact that several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well). 4, 1972) (Japan Convention); Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, 29 U.S.T. A draft EIS, issued subsequent to the proposed rule on June 5, 2020, analyzed various alternatives, some of which were discussed in the public webinars conducted as part of the NEPA scoping process. Collectively, the change in interpretation of these foundational laws and rules will undoubtedly remove any motivation for regulated entities to mitigate the harm caused by their actions on birds and their eggs and will increase incidental take. The commenters noted there is a successful history of the Federal, State, and local governments along with industry working in coordination to implement measures to reduce impacts to migratory birds and that the proposed rule would dismantle the extraordinary and successful history of this cooperation. However, other actions such as poisoning bait to control birds depredating on crops would kill birds outside the context of hunting. documents in the last year, 18 In any event, the views of the 2003 Congress in a rider to an appropriation act that did not even explicitly amend any of the MBTA's language have little if any significance to interpreting the MBTA. The proposed rule contravenes the text and purpose of the MBTA and fails to align with the purpose of our migratory bird treaties and our international obligations. documents in the last year, 28 At the very least, the Department should not be providing the minimum comment period. This administration's sudden policy change has thrown decades of practice and policy into upheaval for all entities, including industry, Federal, State, local, and international agencies, conservation groups, and more. determined that no active bird nests are present. The MBTA is a national law. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. . under the Bald and Golden Eagle Protection . The Federal Indian trust responsibility is a continuing fiduciary duty and legal obligation owed by the Federal Government to Tribes as beneficiaries. Response: The Service works with offshore-wind-energy companies and Federal and State agencies responsible for regulating this industry. This confused order of events also hampers a fair public understanding of the agency's proposed action, alternatives, and likely impacts. Natural Res. The most effective way to reduce uncertainty and have a truly national standard is for the Service to codify and apply a uniform interpretation of the MBTA that its prohibitions do not apply to incidental take, based upon the Fifth Circuit's ruling in CITGO Petroleum Corporation. The Service also notes that the motivation to implement conservation measures to mitigate harm to migratory birds is not simply driven by the threat of enforcement. 703 mean `physical conduct of the sort engaged in by hunters and poachers. . These commenters recommended that the Service postpone any rulemaking regarding MBTA prohibitions of incidental take until the legal challenges to the M-Opinion currently pending in the United States District Court for the Southern District of New York are resolved. As with the 1916 Canada Convention, the Mexico Convention focused primarily on hunting and establishing protections for birds in the context of take and possession for commercial use. . documents in the last year, by the Centers for Medicare & Medicaid Services The United States must honor its obligations under international law or change them through an act of Congress. Comment: Multiple commenters supported the proposed action because a clarification of the scope of the MBTA was needed to avoid unnecessary regulation of industry projects. Some States have statutes with procedural requirements similar to those found in NEPA (e.g., California Environmental Quality Act) and a variety of provisions regulating some form of incidental, indirect, or accidental take, or potentially allowing commissions or agencies to make applicable rules. Response: We appreciate that the commenters have engaged with the Service to advance conservation efforts that protect and enhance wildlife, including migratory birds, and that commenters advocate continued use of good faith efforts to limit impacts to migratory birds. . at 526-27 (1896) (quoting 2 Blackstone Commentary 410). Collisions with wind turbines, which kill an estimated 234 thousand birds per year. The proposal would essentially be adding language to the MBTA given our interpretation that it does not prohibit incidental take. The component actions of take involve direct actions to reduce animals to human control. The 1988 amendment was, as noted, simply a reaction to a court decision that added a negligence standard for baiting violations. This also includes the . See Natl. It is eminently foreseeable and probable that cars and windows will kill birds. (quoting Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302 (9th Cir. Any statements made by the United States in prior international meetings regarding whether the MBTA prohibits incidental take would have been consistent with the Department's interpretation of the MBTA at that time, but we have since changed our position as reflected by this rulemaking. Birds that nest on the ground in sandy or rocky areas are particularly difficult to see and identify, as are birds that nest in trees cavities or holes in the ground. on Foreign Affairs, 64th Cong. Smith v. Goguen, 415 U.S. 566, 572-73 (1974). No regulations have been issued to create a permit scheme to authorize incidental take, so most potential violators have no formal mechanism to ensure that their actions comply with the law. Infeasible to net pits larger than 1 acre due to sagging. To pretend otherwise ignores the agency's own established practices and guidance and constitutes another failure of the Federal Government's trust responsibilities. at 1754. For example, consistent with a product's usage as authorized by the Environmental Protection Agency and based on its intended usage, a farmer could spread poisoned bait to kill birds depredating on her crops. In seeking to take a broader view of congressional purpose, the Moon Lake court looked to other contemporary statements that cited the destruction of habitat, along with improvements in firearms, as a cause of the decline in migratory bird populations. Response: The proposed rule does not alter the burden of proof for intentional take under the MBTA. The operative language in section 2 of the MBTA has changed little since its adoption in 1918. 04/17/2023, 36 1991))); United States v. CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. To be sure, Congress may draft statutory language to include potential future concerns not readily predicted at the time of enactment, but there is no indication that Congress intended the language of section 2 to encompass accidental or incidental deaths of migratory birds. Most bird nests are protected under the Migratory Bird Treaty Act (MBTA). In the draft EIS, we compared the impacts of codifying M-37050 with returning to the prior Opinion's interpretation. For example, on the floor of the Senate, Senator Reed proclaimed: I am opposed not only now in reference to this bill [the MBTA], but I am opposed as a general proposition to conferring power of that kind upon an agent of the Government. Therefore, this action will not have any effect on these species. 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