The Migratory Bird Treaty Act: An Overview March 2014 - Thomas R. Lundquist John C. Martin
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The Migratory Bird Treaty Act:
An Overview
March 2014
Thomas R. Lundquist
John C. Martin
Sarah Bordelon
The Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. The criminal penalties for MBTA violations are
§ 701-12, was first enacted in 1918. Part of the first described in 16 U.S.C. § 707, as amended by 18 U.S.C. §§
generation of federal wildlife laws, the MBTA remains 3559, 3571. Under these provisions, a “knowing”
relevant today because broad interpretations of the Act violation of the MBTA is a felony, while other violations
have the potential to criminalize everyday behavior. are misdemeanors.
The MBTA implements the United States’s The Unsettled Law on MBTA “Citizen Suits” – The
obligations under several international treaties and MBTA on its face provides only for criminal enforcement
conventions for the protection of migratory birds. The by the United States. Unlike statutes such as the
treaty power provided the basis for sustaining the Endangered Species Act (“ESA”), the MBTA contains no
constitutionality of the MBTA in Missouri v. Holland, 252 private right of action or citizen suit provision allowing an
U.S. 416 (1920), in an era when the scope of federal environmental non-governmental organization (“ENGO”)
powers under the Commerce Clause was seen as more to sue a private party directly for an alleged MBTA
limited. The MBTA is administered by the U.S. violation.
Department of the Interior, acting through the U.S. Fish
and Wildlife Service (“FWS”). See 16 U.S.C. § 701. This Nonetheless, the D.C. Circuit has held that ENGOs can
paper provides an overview of the MBTA starting with enforce MBTA limitations against federal agencies
its coverage, then discussing the controversy regarding through civil injunctions in suits brought under the
the interpretation of the criminal “take” prohibition, Administrative Procedure Act (“APA”). Humane Soc’y of
and concluding with an analysis of potential solutions the U.S. v. Glickman, 217 F.3d 882 (D.C. Cir. 2000).
for companies concerned about MBTA liability. Accordingly, in courts following the D.C. Circuit’s view,
ENGOs may use the MBTA and the APA to attempt to
Almost All Bird Species In The U.S. Are Covered By enjoin a federal agency from granting permits needed for
The MBTA – FWS regulations include most native birds federal and private activities, until MBTA compliance is
found in the United States as species protected by the achieved. See Center for Biological Diversity v. Pirie, 91 F.
MBTA – even species that do not migrate internationally. Supp. 2d 161 (D.D.C. 2002), and 201 F. Supp. 2d 113
See 50 C.F.R. § 10.13. “The MBTA now protects nearly all (D.D.C. 2002), vacated as moot, 2003 WL 179848 (D.C.
native birds in the country, of which there are millions if Cir. 2003) (suit to enjoin live-fire training exercises by the
not billions, so there is no end to the possibilities for an military).
arguable violation.” Coggins & Patti, The Resurrection
and Expansion of the Migratory Bird Treaty Act, 50 U. However, the D.C. Circuit’s view is not universally
Colo. L. Rev. 165, 190 (1979). followed. Other courts have found either that the
MBTA does not apply to federal agencies or that the
It Is A Crime To “Take” A Migratory Bird Or Its Nest, APA does not authorize MBTA suits against federal
Except As Authorized By An MBTA Permit – The MBTA is a agencies. See Newton County Wildlife Ass’n v. U.S.
criminal statute. One section of the MBTA makes it Forest Serv., 113 F.3d 110, 114 (8th Cir. 1997); Sierra
unlawful to “kill” or “take” a migratory bird, nest, or egg, Club v. Martin, 110 F.3d 1551, 1556 (11th Cir. 1997);
except as permitted under regulations. Defenders of Wildlife v. EPA, 882 F.2d 1294, 1302 (8th
Cir. 1989). [Disclosure: Crowell & Moring represented
Unless and except as permitted by regulations as the forest products industry in several cases involving
hereinafter provided in this subchapter, it shall be the application of the MBTA to logging. There, we
unlawful at any time, by any means or in any manner, supported narrow constructions of the MBTA.]
to pursue, hunt, take, capture, kill . . . [or transport]
any migratory bird, any part, nest, or egg of any such The Uncertain Scope Of The MBTA’s “Take” And “Kill”
bird. Prohibitions – As described above, the MBTA makes it
unlawful to “take” a migratory bird (or its nest or eggs).
16 U.S.C. § 703.
1FWS’s rules define “take” for MBTA purposes to mean to Hovland concluded that the 1918 MBTA “only covers
“pursue, hunt, shoot, wound, kill, trap, capture, or conduct directed against wildlife” – “lawful commercial
collect.” 50 C.F.R. § 10.12. This definition clearly covers activity which may indirectly cause the death of
activities directed against wildlife, such as hunting or migratory birds does not constitute a federal crime.” 840
killing a migratory bird without a permit. F. Supp. 2d at 1212, 1214.
But do the MBTA terms “take” and “kill” extend The Brigham Oil Court relied on several
beyond such activities directed against wildlife to the complementary analyses. First, the court relied on the
wide set of activities that may inadvertently cause a plain language of the statute, noting that the “ordinary
migratory bird death (e.g., operation of oil and gas meaning” of the word “take” when applied to wildlife
production facilities, construction and operation of wind “denotes intentionally reducing the wildlife to
turbines and telecommunications towers, conduct of possession.” The court felt this approach was consistent
commercial forestry and agriculture, operation of with the binding authority from Eighth Circuit on point in
automobiles and airports) and, if so, how far? Newton County Wildlife Ass’n v. U.S. Dep’t of Agriculture,
Unfortunately, there is no clear answer among the courts 113 F.3d 110, 115 (8th Cir 1997), that the MBTA’s use of
and legal commentators. The law varies circuit-by-circuit. “take” and “kill” refer to “physical conduct engaged in by
hunters and poachers, conduct which was undoubtedly a
Illustrating the split in authority, one author of recent concern at the time of the statute’s enactment in 1918.”
law review article concluded that courts would tend to 840 F. Supp. 2d at 1209. Second, the district court cited
find that bird deaths caused by wind power are not MBTA decisions from the Ninth Circuit and from many other
“take” or “kill” violations, while the co-author concluded district courts which have similarly found that the 1918
the opposite. See Lilley & Firestone, Wind Power, Wildlife, MBTA meaning of “take” and “kill” should be limited to
and the Migratory Bird Treaty Act: A Way Forward, 38 activities directed against wildlife. 840 F. Supp. 2d at
Envtl. L. 1167, 1186-95 (2008). And, two law review notes 1210-11. Third, after acknowledging that “a few courts ...
reached opposite conclusions on whether commercial have applied the Migratory Bird Treaty Act to ...
timber harvesting violates the MBTA if the tree felling commercial activity” not directed against wildlife, Judge
directly causes the death of a nesting bird. Compare Hovland noted that those cases were not controlling. The
Means, Prohibiting Conduct, Not Consequences: The court further reasoned that the broad interpretation of
Limited Reach of the Migratory Bird Treaty Act, 97 Mich. the statute applied in those cases and advocated by the
L. Rev. 823 (1998) with Kim, Chopping Down the Birds: government was unpersuasive because a “court is
Logging and the Migratory Bird Treaty Act, 31 Envtl. L. required to construe a criminal statute narrowly.” 840 F.
125 (2001). FWS has pushed the broad interpretation of Supp. 2d at 1211. That is, the “rule of lenity requires
the MBTA in enforcement actions, but has met with ambiguous criminal laws to be interpreted in favor of the
mixed success in the federal courts. defendants subject to them.” Id. (quoting United States v.
Santos, 553 U.S. 507, 514 (2008)). Accordingly, the MBTA
The narrow view of MBTA “take” and “kill” – under as currently written does not make it a crime to engage in
which the terms are restricted to actions directed “ordinary land uses which may cause bird deaths [such
against migratory birds – received a major boost as] cutting brush and trees, and planting and harvesting
recently in United States v. Brigham Oil and Gas, L.P., crops” or “ordinary activities such as driving a vehicle,
840 F. Supp. 2d 1202 (D. N.D. 2012). There, the owning a building with windows, or owning a cat, [which]
government brought criminal charges against seven oil inevitably cause migratory bird deaths.” 840 F. Supp. 2d
and gas companies, alleging that the unintended deaths at 1212.
of a few migratory birds in oil reserve pits violated the
MBTA. [Disclosure: Crowell & Moring represents On the other hand, some circuit courts and district
Continental Resources in the Brigham Oil case.] The courts have sided with FWS’s broad view that MBTA
district court dismissed the charges. District Judge “take” and “kill” refer, not to conduct directed against
2wildlife, but to any activity that has the direct effect of before FWS provided notice that the land-use activity
killing or injuring a migratory bird. FWS’s view gains could be a proximate cause of MBTA “take.” See 611
some support from the statutory references to killing F.3d at 688-91 (“When the MBTA is stretched to
“by any means or in any manner,” and the inclusion of criminalize predicate acts that could not have been
misdemeanor penalties for a non “knowing” take. 16 reasonably foreseen to result in a proscribed effect on
U.S.C. §§ 703, 707. birds, the statute reaches its constitutional breaking
point.”).
As mentioned above, in a series of criminal
prosecutions the Department of Justice has pushed the Thus, there is considerable legal uncertainty over
broad interpretation of the statute, and some courts whether, and the extent to which, incidental migratory
have accepted the theory, gradually expanding the scope bird deaths that occur in the course of lawful land-use
of the MBTA in those jurisdictions. In United States v. activities will constitute violations of the MBTA. The
FMC Corp., 572 F.2d 902 (2d Cir. 1978), the Second Circuit judicial answer often varies circuit by circuit, and the
affirmed the conviction of a manufacturer of pesticides facts and equities of a particular case.
for migratory bird deaths. Still the FMC court stated
misgivings (a “construction that would bring every killing The Legal Uncertainty Is Compounded By The Lack Of
within the statute, such as deaths caused by automobiles, A Clear Regulatory Mechanism To Permit Incidental Take
airplanes, plate glass modern office buildings or picture – The end result of the divided MBTA case law is
windows into such birds fly, would offend reason and substantial legal uncertainty about whether land-use
common sense”) and suggested possibly limiting activities being conducted for otherwise-lawful purposes
incidental takes to “extrahazardous” activities (actually can be found to be MBTA violations if they have resulted
what are termed “ultrahazardous” activities in tort law in or will result in migratory bird deaths.
parlance). 572 F.2d at 905, 907. In a contemporaneous
high-profile case, an applicator of pesticides was found to One potential solution is to utilize FWS’s authority
have violated the MBTA. United States v. Corbin Farm under 16 U.S.C. § 703 to issue regulations and permits
Servs., 444 F. Supp. 510 (E.D. Cal. 1978), aff’d on other that would render lawful certain arguable MBTA “takes.”
grounds, 578 F.2d 259 (9th Cir. 1978). While FWS has regulations to permit migratory bird
hunting seasons and other directed-at-wildlife takes, FWS
During a later Democratic Administration, the has no current regulations that clearly authorize permits
Department of Justice convinced a district court that the for incidental take of migratory birds. The position of the
MBTA was not limited to activities directed against United States in CBD v. Pirie was that there “are no
migratory birds (e.g., hunting), and that the MBTA provisions for the Service to issue permits authorizing
prohibited migratory bird deaths which an electric utility UNINTENDED” takes or deaths of migratory birds. CBD v.
could reduce by adopting some relatively inexpensive and Pirie, 191 F. Supp. 2d at 167. “[M]igratory bird permits
available protective measures. United States v. Moon are not generally available for ‘incidental’ take of
Lake Electric Ass’n, 45 F. Supp. 2d 1070 (D. Colo. 1999). protected species, such as those caused by typical
Most recently, the Tenth Circuit concluded that MBTA commercial or industrial operations.” Reimer &
“take” is a “strict liability” misdemeanor crime, covering Snodgrass, Tortoises, Bats, and Birds,Oh My: Protected-
all deaths of migratory birds (finding there is no mens Species Implications for Renewable Energy Projects, 46
rea or intent-to-kill-birds requirement), and concluded Idaho L. Rev. 545, 552, 566 (2010). “To date, however,
that the MBTA is not unconstitutionally vague. United the FWS has not issued rules expressly providing for a
States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. permitting program for incidental take (although the
2010). This reasoning was sufficient to sustain FWS, in very limited circumstances, has granted
misdemeanor convictions of oil drillers once FWS put individual permits).” U.S. Fish and Wildlife Service Wind
them on notice that their heater-treaters could trap and Turbine Guidelines Advisory Committee
kill migratory birds, but not for conduct that occurred Recommendations, Appendix B Legal White Paper at B5
3and B14-15 (March 2010) (available at years after the statute was enacted, as prohibiting such
http://www.fws.gov/habitatconservation/windpower/wi activity.” Mahler v. U.S. Forest Serv., 927 F. Supp. 1559,
nd_turbine_guidelines_advisory_committee_recommend 1581 (S.D. Ind. 1996). Thus, one potential solution is for
ations_secretary.pdf). Congress or the courts to construe the statute narrowly
so that land-use activities not directed against wildlife
For those supporting the broad view of MBTA cannot be violations of the MBTA.
“take,” the absence of clear rules for permitting
incidental take simply means that FWS and the A second potential solution is for FWS to adopt a set
Department of Justice have extensive prosecutorial of industry-specific guidelines on recommended and best
discretion. That is, a wide array of land-use activities practices and state that it will not prosecute any MBTA
may be technical violations of the MBTA. Under its takes that occur if the voluntary guidelines are followed.
historical practice, FWS normally will not recommend This is one solution that has been proposed to reduce the
prosecution unless the actor declines to adopt available levels of migratory bird deaths associated with wind
measures to reduce the known risk of migratory bird turbines and wind energy.
deaths.
A third potential solution is for FWS to issue rules
Potential Ways Forward – Many commentators and that expressly provide for permits for incidental take of
companies are not comfortable with fuzzy potential migratory birds.
MBTA liability and with reliance on uncertain
prosecutorial discretion to avoid criminal liability for an * * *
otherwise-lawful land use. There are several possible
solutions to the suboptimal current situation. While we hope this overview of the MBTA provides
you with a helpful background, this overview cannot
First, for some, the absence of FWS rules providing provide legal advice. Persons with emerging MBTA issues
MBTA permits for the wide variety of land-use activities should contact a knowledgeable practitioner.
which may cause migratory bird deaths suggests that,
historically, FWS has not viewed incidental take as being For those interested in learning more about the
prohibited by the MBTA. For example, one court MBTA, the FWS website noted below provides substantial
reasoned: “The apparently complete absence of criminal information on MBTA facts, legal issues, and policies:
prosecutions for bird deaths resulting from logging, and
the government’s long record of permitting logging under http://www.fws.gov/migratorybirds/AboutUS.html
circumstances where some bird deaths presumably
occurred, provide a strong basis for concluding that the
statute should not be interpreted, for the first time in 80
4About the Authors
Thomas R. Lundquist is a counsel in the firm's Environment & Natural Resources Group, where he
focuses on natural resources counseling and litigation. Over the course of his 25-year career as an
environmental attorney, Tom has litigated more than 50 cases involving the ESA, the MBTA, and
other national resource statutes. Tom is a seasoned advisor to Fortune 500 companies, providing
both strategic counseling and comprehensive litigation defense strategies on ESA, MBTA, and other
natural resource matters. He can be reached at tlundquist@crowell.com and 202.624.2667.
John C. Martin is a partner in the firm’s Environment & Natural Resources Group, where he
represents clients in complex litigation involving natural resources and environmental issues. John
has litigated a number of cases under various environmental laws including the National
Environmental Policy Act, the ESA and MBTA, the Clean Air Act, the Clean Water Act, and Superfund.
He has developed a particular focus on the application of environmental regulation to the energy
industry. In addition to federal district court litigation, John has argued several cases before the U.S.
Courts of Appeals, including both appeals and regulatory matters. He represents clients before the
Interior Board of Land Appeals and in administrative proceedings at the Environmental Protection
Agency. He can be reached at jmartin@crowell.com and 202.624.2505.
Sarah Bordelon is a counsel in Crowell & Moring's Environment & Natural Resources Group. She
counsels clients in obtaining environmental permits, litigates environmental and natural resource
matters, participates in proposed state and federal rulemakings, and advises clients on
environmental compliance and enforcement matters. She is experienced in permitting major
resource and development projects and defending the permits for those projects when challenged.
Sarah has worked on matters involving a number of environmental statutes, including the National
Environmental Policy Act, Clean Air Act, Clean Water Act, Oil Pollution Act of 1990, Outer
Continental Shelf Lands Act, National Historic Preservation Act, Endangered Species Act, Marine
Mammal Protection Act, Migratory Bird Treaty Act, and the Federal Land Policy and Management Act. She can be
reached at sbordelon@crowell.com and 202.624.2514.
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