Thus, there appears to be no explicit basis in the language or the development of the MBTA for concluding that it was intended to be applied to any and all human activity that causes even unintentional deaths of migratory birds. 1577-78 (listing a litany of scenarios where normal everyday actions could potentially and incidentally lead to the death of a single bird or breaking of an egg in a nest)). The scope of prohibited conduct covers actions, which require intentpursue, hunt, and capture are all actions directed at wildlife and cannot be performed by accident. Both the underlying M-Opinion and the preamble to this rule analyzed the prior interpretation and explained both why it is incorrect and why it does not provide the same level of certainty or consistency in enforcement. documents in the last year, 1416 Fish and Wildlife Service, Land-Based Wind Energy Guidelines 6 (Mar. Installation of flashing obstruction lighting. See, e.g., U.S. 1996), the court described the interplay between activities that are specifically directed at birds and the strict liability standard of the MBTA: [A comment in the legislative history] in favor of strict liability does not show any intention on the part of Congress to extend the scope of the MBTA beyond hunting, trapping, poaching, and trading in birds and bird parts to reach any and all human activity that might cause the death of a migratory bird. 16 U.S.C. With effective protection, the drafters wanted to be able to revive and sustain completely decimated populations on behalf of the Americans who recognized aesthetic, economic, and recreational value in sustaining migratory bird populations. High variability in number of wells drilled per year (21,200 in 2019). The results of these consultations are summarized in the NEPA Record of Decision associated with this rulemaking, published at http://www.regulations.gov in Docket No. Meridian also located numerous nests . Given the legal uncertainty and political controversy surrounding Federal regulation of intentional hunting in 1918, it is highly unlikely that Congress intended to confer authority upon the executive branch to prohibit all manner of activity that had an incidental impact on migratory birds. on at 1754. Under Alternative A, the Service hereby promulgates a regulation that defines the scope of the MBTA take prohibitions to include only actions directed at migratory birds. These mechanisms could reduce impacts to birds in some circumstances. Response: This proposal does not authorize the taking of migratory birds; it defines the scope for when authorizations under section 2 are necessary and proper. rendition of the daily Federal Register on FederalRegister.gov does not Comment: Multiple Tribes stated that the United Nations Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP), endorsed by the United States in 2010, recognizes that indigenous people must give Free, Prior and Informed Consent for projects affecting their interests, prior to approval of any project affecting their land or territories. The authority citation for part 10 continues to read as follows: Authority: The court centered its reading of section 2 around its conclusion that any means of killing migratory birds is prohibited, whether the killing is the result of an action directed at a migratory bird or wholly the result of passive conduct. Comment: Multiple commenters noted that the codification of the Solicitor's M-Opinion 37050 is premature as it has not been fully vetted or withstood legal challenges. Nests of bald and golden eagles are also always protected under the Bald and Golden Eagle Protection Act. Treaty Act and Migratory Bird Conservation Act (16 U.S.C. These species are protected under the Migratory Bird Treaty Act (1918) based on their international importance. Migratory Bird Permit | U.S. documents in the last year, 18 Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y.). This definition still requires law enforcement to prove intent, which can be just as difficult to prove, just as legally uncertain, and equally burdensome to law enforcement. The Act establishes an infrastructure and provides a source of funding, a competitive grant program. We will also continue to work with other Federal agencies and stakeholders to promote conservation measures that reduce incidental take and protect migratory bird habitat, consistent with the Federal statutes we implement to manage, conserve, and protect migratory birds and other wildlife. The proposed rule contravenes the text and purpose of the MBTA and fails to align with the purpose of our migratory bird treaties and our international obligations. The example provided by the commenter regarding active nest removal is a clear case of incidental take that is not prohibited by the MBTA, although it may violate other Federal, State, Tribal, or local laws and regulations. Comment: Multiple commenters stated that the proposed rule is likely to facilitate a substantial increase in the number of migratory birds killed, in direct conflict with the amended treaty with Canada. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y. In addition to the MBTA, other Federal and State laws protect birds and require specific actions to reduce project-related impacts. This letter explained that birds provide tremendous value to our communities. If the MBTA was originally understood to protect migratory bird habitats from incidental destruction, enactment of the Migratory Bird Conservation Act 11 years later would have been largely superfluous. Trucking Ass'ns, 531 U.S. 457, 468 (2001). However, the economic impact of the rule on small entities is likely not significant. . A draft EIS, issued subsequent to the proposed rule, analyzed various alternatives, some of which were discussed in the public webinars conducted as part of the NEPA scoping process. corresponding official PDF file on govinfo.gov. These commenters recommended that the Service postpone any rulemaking regarding MBTA prohibitions of incidental take until the legal challenges to the M-Opinion currently pending in the United States District Court for the Southern District of New York are resolved. structure While unregulated harvesting is no longer a primary threat to migratory birds, declines in bird populations continue to remain a serious international issue. Only Congress can enact or amend statutory language. The NEPA process provides a broad analysis of the environmental and socioeconomic impacts of reasonable alternatives to the agency's proposal. on FederalRegister.gov It does not require any delegation from Congress other than the delegations to the Secretary already included in the terms of the statute. Since the Small Business Size Standard is less than 1,250 employees, we assume all businesses are small. Alternatively, Congress could have amended the MBTA itself to clarify that it did not apply to incidental takes and kills. Open for Comment, Economic Sanctions & Foreign Assets Control, Tool Chests and Cabinets From China and Vietnam, Experimental Permits for Reusable Suborbital Rockets, Animal and Plant Health Inspection Service, Medicaid and Children's Health Insurance Program, Prohibition on Use by the United States Government of Commercial Spyware That Poses Risks to National Security, Policy Analysis of Incidental Take Under the MBTA, Regulatory Planning and Review (Executive Orders 12866 and 13563), Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act, Crude Petroleum and Natural Gas Extraction (NAICS 211111), Drilling Oil and Gas Wells (NAICS 213111), Solar Electric Power Generation (NAICS 221114), Other Industries (NAICS 221115, 221121, 221122, and 517312), Compliance with Endangered Species Act Requirements, Government-to-Government Relationship With Tribes, https://www.federalregister.gov/d/2021-00054, MODS: Government Publishing Office metadata, title 50 of the Code of Federal Regulations, https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php, https://beta.regulations.gov/docket/FWS-HQ-MB-2018-0090/document, Crude Petroleum and Natural Gas Extraction, Wireless Telecommunications Carriers (except Satellite). Industry will likely continue to install flashing obstruction lighting to save energy costs and to comply with recent Federal Aviation Administration Lighting Circular and Federal Communication Commission regulations. 2015), which held that the MBTA does not prohibit incidental take. The Service has conducted a cost-benefit analysis which can be viewed online at https://beta.regulations.gov/docket/FWS-HQ-MB-2018-0090/document and https://www.fws.gov/regulations/mbta/. ' (quoting Third Nat'l Bank, 432 U.S. at 322)). . Due to the biological and behavioral characteristics of some migratory bird species, destruction of their nests entails an elevated risk of violating the MBTA. As the U.S. Supreme Court recognized 100 years ago, State-level protections are insufficient to protect transient species that travel outside of a State's territorial bounds. determined that no active bird nests are present. . Response: It is appropriate for individual States to determine whether and how to regulate incidental take of migratory birds, given that the MBTA does not prohibit incidental take. documents in the last year, 124 Recognizing the challenge posed by relying upon prosecutorial discretion, the FMC court sought to avoid absurd results by limiting its holding to extrahazardous activities. FMC, 572 F.2d at 907. The Service concludes that it is in its own interest, as well as that of the public, to have and apply a national standard that sets a clear, articulable rule for when an operator crosses the line into criminality. Therefore, the commenter requested that the proposed rule be revised to include the three alternatives described in NEPA scoping and detailed information about the implementation of each, ensuring all affected parties are aware of the alternatives, through proper notice of rulemaking, as well as how the Service made its choice. 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