USFWS proposes new migratory bird rule

Last week, the U.S. Fish and Wildlife Service published a proposed rule reducing the ability of the Migratory Bird Treaty Act to prevent actions that injure or kill native birds.

In December 2017, the Interior Department changed its internal interpretation of the law, issuing an opinion stating that the MBTA did not apply to unintentional or incidental “take.” For decades, the bill had been applied to both intentional and incidental take.

The Migratory Bird Treaty Act of 1918 protects over 1,000 migratory bird species across the United States by making 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. The U.S. Fish and Wildlife Service, which enforces this law, defines “take” as to “pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture or collect.”

The proposed rule would codify in regulation the administration’s interpretation that the law only applies to the intentional take of birds.

“The Wildlife Society is concerned this new rule will limit the ability of wildlife agencies and professionals to successfully conserve migratory bird populations,” said Caroline Murphy, AWB®, government relations manager at The Wildlife Society.

“We spoke out before about the danger of this interpretation, and will again. We urge the administration to reconsider its approach to this historic and vital piece of wildlife conservation legislation,” Murphy said.

The Service also published a notice of intent indicating that it will prepare an environmental impact statement to analyze the potential environmental effects of the rule change under the National Environmental Policy Act. The agency is requesting public comments to assist them in defining the range of issues and possible alternatives to be addressed in the EIS. Comments will be accepted through March 19. More information about the proposed rule is available here.

Legislation has been introduced in Congress to ensure that the MBTA applies to the incidental take of all migratory birds protected by the law. The Migratory Bird Protection Act of 2020 (H.R. 5552) has been approved by the House Natural Resources Committee and is awaiting a vote on the House floor. The Wildlife Society, along with over 100 other organizations, signed a letter to committee leadership supporting the legislation.

“The Migratory Bird Protection Act presents a major opportunity to secure bird protections and safeguard the law,” the letter read. “The bill reaffirms longstanding protections for birds from industrial hazards, which until this administration had been applied consistently for decades.”

The proposed rule was also the subject of several questions directed toward Rob Wallace, assistant Interior secretary for fish and wildlife and parks, at a recent oversight hearing held by the Senate Environment and Public Works Committee.

Several states have joined together to file suit in federal court against the Interior Department, asking the court to vacate the 2017 opinion from Interior’s Office of Solicitor. That case is pending.