On December 22, 2017, the U.S. Department of Interior (DOI) reversed course and issued a Memorandum interpreting the scope of criminal liability under the Migratory Bird Treaty Act (MBTA) and its applicability to “incidental takings,” which the Memorandum defines as a death or other “take” that “results from an activity, but [that] is not the purpose of that activity.” In short, the Memorandum concludes that criminal liability under the MBTA should not be interpreted to extend to incidental takes, and instead only applies to “affirmative actions that has as their purpose the taking or killing of migratory birds, their nests, or their eggs.” This Memorandum will provide significant needed clarity to renewable energy projects and many other industries that perform activities with the potential to indirectly, and non-purposefully, impact migratory birds during development, construction, or operation.

The Memorandum formally withdraws and replaces a Memorandum issued in the last days of the Obama Administration, which had concluded that criminal liability under the MBTA should apply to incidental takings. The new Memorandum relies on text of the MBTA, its purpose, as well as legislative history to support its about-face. It also acknowledges the existence of a split of judicial authority on the issue, noting that “Courts of Appeal in the Second and Tenth Circuits, as well as district courts in at least the Ninth and District of Columbia Circuits, have held that the MBTA criminalizes some instances of incidental take,” while “Courts of Appeal in the Fifth, Eighth, and Ninth Circuits, as well as district courts in the Third and Seventh Circuits, have indicated that it does not.” These cases addressed the accidental killing of birds from oil pits, power lines, and other equipment.

Issued on behalf of the DOI Solicitor, the Memorandum effectively forecloses the possibility of criminal prosecution under the Trump Administration for the deaths of migratory birds that occur incidentally during the development, construction, or operation of otherwise lawful activities. Moreover, theoretically, DOI’s issuance of this Memorandum also removes any jurisdiction by the U.S. Fish and Wildlife Service to impose avoidance, minimization, or mitigation measures for migratory birds on such parties, though it remains to be seen how regional offices will view their roles with regard to migratory birds going forward.

For more information regarding the Memorandum or its implications, please contact Angela Levin, Andrea Wortzel, Laura Boorman, or Rich Pepper.