Migratory Bird Treaty Act rule to be revoked

The U.S. Fish and Wildlife Service proposed to formally revoke a final rule published in January by the former U.S. administration, which aimed to limit the scope of the Migratory Bird Treaty Act to exclude incidental take.

The Wildlife Society had previously urged the Trump administration to abandon the rulemaking and rescind their interpretation of the MBTA. The Society submitted comments on the proposed rule in March 2020 and on the environmental impact statement analyzing that proposed rule in July 2020. The Wildlife Society has also shown support for legislation considered in the last Congress that would reaffirm the MBTA’s prohibition on incidental take, which is awaiting reintroduction in this Congress.

“We are very pleased with this proposal from the U.S. Fish and Wildlife Service,” said Caroline Murphy, AWB®, government relations manager for The Wildlife Society. “Full enforcement of the Migratory Bird Treaty Act is critical for the 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 proposal released last week would reinstate the traditional interpretation of the MBTA as prohibiting any incidental — or accidental — take of birds protected by the act.

In the proposal, the USFWS noted that the exclusion of incidental take from the law was not consistent with either legal precedent or with the United States’ treaty obligations to Canada under the Migratory Bird Treaty.

Earlier this year, the U.S. Department of the Interior revoked the internal guidance issued by the Interior’s Solicitor’s Office in 2014 that first limited enforcement of the MBTA. That opinion was codified in the final rule published in January.

Comments on the proposal to rescind the current rule will be accepted through June 7. The current rule, which limits the scope of the MBTA to exclude incidental take, will remain in effect until last week’s proposal is finalized.