Eight states sue over Migratory Bird Treaty Act memo

Eight states filed suit on Sept. 5 in federal court against the Interior Department, asking the court to vacate last year’s opinion from Interior’s Office of Solicitor regarding the Migratory Bird Treaty Act.

In the suit, New York, California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico and Oregon allege the opinion is inconsistent with the MBTA and decades of interpretation of the act by Interior and the U.S. Fish and Wildlife Service. The states argue that the memo narrows the scope of the act and harms the states’ interests.

In December 2017, Interior’s Office of the Solicitor issued an opinion stating the MBTA does not apply to unintentional “take” of a protected bird. Before the opinion was issued, MBTA was interpreted to cover both intentional and unintentional take of migratory birds. Unintentional take can apply to activities such as wind energy development, traditional oil and gas development and power transmission, and this new opinion could shield energy companies and others from prosecution.

The memo argues that “the text, history and purpose of the MBTA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching,” and concludes that unintentional take of migratory bird should not be punished.

The eight states join several environmental and conservation organizations, including the National Audubon Society and the National Wildlife Federation, which sued Interior over the policy change in May in two separate lawsuits. The states and organizations all argue that the Solicitor’s opinion inappropriately narrows the MBTA and should be vacated.

TWS and other organizations, as well as former administration officials, have also expressed concern about the policy change and its effect on wildlife management and conservation. 

The Migratory Bird Treaty Act was passed in 1918 and has been amended several times. It protects over 1,000 species of migratory birds and makes it illegal to take, possess, import, export, transport, sell, purchase, barter or offer for sale, purchase or barter, any migratory bird (or part of one), or a migratory bird nest or egg, without a valid permit. “Take” is defined by the USFWS as to “pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture or collect.”