Judge strikes down migratory bird incidental take memo

A New York federal district court judge ruled earlier this month that the Department of the Interior’s Solicitor’s interpretation that the Migratory Bird Treaty Act does not apply to incidental take of migratory birds is contrary to the act itself and is therefore invalid.

The ruling does not directly affect the agency’s ongoing rulemaking, which will codify the new interpretation. The Wildlife Society submitted comments on the proposed rule, as well as on the accompanying environmental analysis. The Society is also supporting legislation to reaffirm the MBTA’s prohibition on incidental take.

“We’re pleased with the district court ruling and will continue to work to ensure that the MBTA remains strong and that the regulations that implement it enable wildlife professionals to conserve migratory birds,” said Caroline Murphy, AWB®, director of government relations for The Wildlife Society.

The Migratory Bird Treaty Act of 1918 protects over 1,000 migratory bird species across the United States by making it illegal to take — harm or kill — those species without a permit. The MBTA has traditionally been interpreted as prohibiting both the intentional take of migratory birds and their accidental — or incidental — take.

In late 2017, the Department of the Interior’s Office of the Solicitor issued a new interpretation of the Migratory Bird Treaty Act, which stated that the act would no longer be applied to incidental take. This decision prompted a lawsuit from the American Bird Conservancy and the National Audubon Society, along with other environmental organizations, in May 2018. Later that year, eight States filed a similar lawsuit. These suits were consolidated into one, in which the plaintiffs argued that the new interpretation was contrary to the MBTA.

Earlier this month, the district court agreed, finding that the administration’s interpretation “is contrary to the plain meaning of the MBTA and therefore must be vacated.” While Interior has not commented publicly, it will likely appeal the decision. Based on previous cases involving the MBTA, the federal appeals courts appear to be split on the question of whether incidental take is covered by the law.