Interior revokes internal guidance on MBTA

The U.S. Department of the Interior has revoked the internal guidance issued by the Interior’s Solicitor’s Office in 2014 that limits enforcement of the Migratory Bird Treaty Act to exclude incidental take, or the unintentional killing or injuring of birds. 

The Wildlife Society had urged the Department to reconsider the opinion known as the M-Opinion, and opposed the rulemaking effort.  

“We are pleased to see this action by the administration,” said Caroline Murphy, AWB®, government relations manager for The Wildlife Society. “Rescinding this guidance and its associated rule will empower wildlife professionals in their efforts to advance science-based conservation of migratory birds across North America.”

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 Interior’s statement, released earlier this week, notes that the M-Opinion’s reasoning has been rejected by a federal court. That ruling came in August. In October, the Trump administration announced it would appeal the decision. However, the Biden administration recently dropped that appeal. 

The previous administration also codified the M-Opinion in a regulatory proposal released last year and finalized early this year. When the Biden administration took office, it delayed the implementation date by a month. The rule went into effect on March 8. However, according to the statement released by Interior, the department will soon issue a proposal to revoke the rule. It also plans to “reconsider its interpretation of the MBTA to develop common sense standards that can protect migratory birds and provide certainty to industry,” according to the statement. 

The Wildlife Society submitted comments on the proposed rule last March, urging the agency to abandon the proposal and return to the traditional interpretation of the act. In July, The Wildlife Society submitted comments on the draft Environmental Impact Statement analyzing the regulatory proposal, finding that the analysis contained therein was inadequate and recommending that the agency rescind the proposed rule altogether. Recent legislation which would reaffirm the MBTA’s prohibition on incidental take has also received support from The Wildlife Society.