[Federal Register Volume 85, Number 22 (Monday, February 3, 2020)]
[Proposed Rules]
[Pages 5915-5926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01771]



Fish and Wildlife Service

50 CFR Part 10

[Docket No. FWS-HQ-MB-2018-0090; FF09M29000-156-FXMB1232090BPP0]
RIN 1018-BD76

Regulations Governing Take of Migratory Birds

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (FWS, Service, we), 
propose to adopt a regulation that defines the scope of the Migratory 
Bird Treaty Act (MBTA or Act) as it applies to conduct resulting in the 
injury or death of migratory birds protected by the Act. This proposed 
rule is consistent with the Solicitor's Opinion, M-37050, which 
concludes that the MBTA's prohibitions on pursuing, hunting, taking, 
capturing, killing, or attempting to do the same, apply only to actions 
directed at migratory birds, their nests, or their eggs.

DATES: We will accept written comments on this proposed rule until 
March 19, 2020.

ADDRESSES: You may submit comments by either one of the following 
methods. Please do not submit comments by both.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-HQ-
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-HQ-MB-2018-0090; U.S. Fish and Wildlife Service; MS: JAO/1N; 
5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We will not accept email or faxes. We will post all comments on 
http://www.regulations.gov, including any personal information you 
provide. See Public Comments, below, for more information.

FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director, 
Migratory Birds, at 202-208-1050.



    The Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703 et seq.) was 
enacted in 1918 to help fulfill the United States' obligations under 
the 1916 ``Convention between the United States and Great Britain for 
the protection of Migratory Birds.'' 39 Stat. 1702 (Aug. 16, 1916) 
(ratified Dec. 7, 1916) (Migratory Bird Treaty). The list of applicable 
migratory birds protected by the MBTA is currently codified in title 50 
of the Code of Federal Regulations at 50 CFR 10.13.
    In its current form, section 2(a) of the MBTA provides that, unless 
permitted by regulations, it is unlawful:

at any time, by any means or in any manner, to pursue, hunt, take, 
capture, kill, attempt to take, capture, or kill, possess, offer for 
sale, sell, offer to barter, barter, offer to purchase, purchase, 
deliver for shipment, ship, export, import, cause to be shipped, 
exported, or imported, deliver for transportation, transport or 
cause to be transported, carry or cause to be carried, or receive 
for shipment, transportation, carriage, or export, any migratory 
bird, any part, nest, or egg of any such bird, or any product, 
whether or not manufactured, which consists, or is composed in whole 
or part, of any such bird or any part, nest, or egg thereof.

16 U.S.C. 703(a).
Section 3(a) of the MBTA authorizes and directs the Secretary of the 

[[Page 5916]]

to ``adopt suitable regulations'' allowing ``hunting, taking, capture, 
killing, possession, sale, purchase, shipment, transportation, 
carriage, or export of any such bird, or any part, nest, or egg 
thereof'' while considering (``having due regard to'') temperature 
zones and ``distribution, abundance, economic value, breeding habits, 
and times and lines of migratory flight of such birds.'' 16 U.S.C. 
704(a). Section 3(a) also requires the Secretary to ``determine when, 
to what extent, if at all, and by what means, it is compatible with the 
terms of the conventions'' to adopt such regulations allowing these 
otherwise-prohibited activities. Id.
    On December 22, 2017, the Principal Deputy Solicitor of the 
Department of the Interior, exercising the authority of the Solicitor 
pursuant to Secretary's Order 3345, issued a legal opinion, M-37050, 
``The Migratory Bird Treaty Act Does Not Prohibit Incidental Take'' (M-
37050 or M-Opinion). This opinion thoroughly examined the text, 
history, and purpose of the MBTA and concluded that the MBTA's 
prohibitions on pursuing, hunting, taking, capturing, killing, or 
attempting to do the same apply only to actions that are directed at 
migratory birds, their nests, or their eggs. This opinion is consistent 
with the Fifth Circuit's recent decision in United States v. CITGO 
Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), which examined whether 
the MBTA prohibits incidental take. It also marked a change from prior 
U.S. Fish and Wildlife Service interpretations and an earlier 
Solicitor's Opinion, M-37041, ``Incidental Take Prohibited Under the 
Migratory Bird Treaty Act.'' The Office of the Solicitor performs the 
legal work for the Department of the Interior, including the U.S. Fish 
and Wildlife Service (hereafter ``Service''). The Service is the 
Federal agency delegated the primary responsibility for managing 
migratory birds.
    This proposed rule addresses the Service's responsibilities under 
the MBTA. Consistent with M-37050, the Service proposes to adopt a 
regulation defining the scope of the MBTA's prohibitions to reach only 
actions directed at migratory birds, their nests, or their eggs.

Provisions of the Proposed Rule

Scope of the Migratory Bird Treaty Act

    As a matter of both law and policy, the Service proposes to codify 
M-37050 in a regulation defining the scope of the MBTA. M-37050 is 
available on the internet at the Federal eRulemaking Portal: http://www.regulations.gov in Docket No. FWS-HQ-MB-2018-0090; and at https://www.doi.gov/solicitor/opinions.
    As described in M-37050, the text and purpose of the MBTA indicate 
that the MBTA's prohibitions on pursuing, hunting, taking, capturing, 
killing, or attempting to do the same only criminalize actions that are 
specifically directed at migratory birds, their nests, or their eggs.
    The relevant portion of the MBTA reads, ``it shall be unlawful at 
any time, by any means or in any manner, to pursue, hunt, take, 
capture, kill, attempt to take, capture, or kill . . . any migratory 
bird, [or] any part, nest, or egg of any such bird.'' 16 U.S.C. 703(a). 
Of the five referenced verbs, three--pursue, hunt, and capture--
unambiguously require an action that is directed at migratory birds, 
nests, or eggs. To wit, according to the entry for each word in a 
contemporary dictionary:

     Pursue means ``[t]o follow with a view to overtake; to 
follow eagerly, or with haste; to chase.'' Webster's Revised Unabridged 
Dictionary 1166 (1913);
     Hunt means ``[t]o search for or follow after, as game or 
wild animals; to chase; to pursue for the purpose of catching or 
killing.'' Id. at 713; and
     Capture means ``[t]o seize or take possession of by force, 
surprise, or stratagem; to overcome and hold; to secure by effort.'' 
Id. at 215.
Thus, one does not passively or accidentally pursue, hunt, or capture. 
Rather, each requires a deliberate action specifically directed at 
achieving a goal.
    By contrast, the verbs ``kill'' and ``take'' could refer to active 
or passive conduct, depending on the context. See id. at 813 (``kill'' 
may mean the more active ``to put to death; to slay'' or serve as the 
general term for depriving of life); id. at 1469 (``take'' has many 
definitions, including the more passive ``[t]o receive into one's hold, 
possession, etc., by a voluntary act'' or the more active ``[t]o lay 
hold of, as in grasping, seizing, catching, capturing, adhering to, or 
the like; grasp; seize;--implying or suggesting the use of physical 
    Any ambiguity inherent in the statute's use of the terms ``take'' 
and ``kill'' is resolved by applying established rules of statutory 
construction. First and foremost, when any words ``are associated in a 
context suggesting that the words have something in common, they should 
be assigned a permissible meaning that makes them similar.'' Antonin 
Scalia & Bryan A. Garner, Reading the Law: The interpretation of Legal 
Texts, 195 (2012); see also Third Nat'l Bank v. Impac, Ltd., 432 U.S. 
312, 321 (1977) (``As always, `[t]he meaning of particular phrases must 
be determined in context' . . . .'' (quoting SEC v. Nat'l Sec., Inc., 
393 U.S. 453, 466 (1969)); Beecham v. United States, 511 U.S. 368, 371 
(1994) (the fact that ``several items in a list share an attribute 
counsels in favor of interpreting the other items as possessing that 
attribute as well''). Section 2 of the MBTA groups together five 
verbs--``pursue,'' ``hunt,'' ``take,'' ``capture,'' and ``kill.'' 
Accordingly, the statutory construction canon of noscitur a sociis 
(``it is known by its associates'') counsels in favor of reading each 
verb to have a related meaning. See Scalia & Garner at 195 (``The canon 
especially holds that `words grouped in a list should be given related 
meanings.' '' (quoting Third Nat'l Bank, 432 U.S. at 322)).
    Thus, when read together with the other active verbs in section 2 
of the MBTA, the proper meaning is evident. The operative verbs 
(``pursue, hunt, take, capture, kill'') ``are all affirmative acts . . 
. which are directed immediately and intentionally against a particular 
animal--not acts or omissions that indirectly and accidentally cause 
injury to a population of animals.'' Sweet Home, 515 U.S. at 719-20 
(Scalia, J., dissenting) (agreeing with the majority opinion that 
certain terms in the definition of the term ``take'' in the Endangered 
Species Act (ESA)--identical to the other prohibited acts referenced in 
the MBTA--refer to deliberate actions, while disagreeing that the use 
of the additional definitional term ``harm''--used only in the ESA--
meant that ``take'' should be read more broadly to include actions not 
deliberately directed at covered species); see also United States v. 
CITGO Petroleum Corp., 801 F.3d 477, 489 n.10 (5th Cir. 2015) (``Even 
if `kill' does have independent meaning [from `take'], the Supreme 
Court, interpreting a similar list in the [Endangered Species Act], 
concluded that the terms pursue, hunt, shoot, wound, kill, trap, 
capture, and collect, generally refer to deliberate actions''); cf. 
Sweet Home, 515 U.S. at 698 n.11 (Congress's decision to specifically 
define ``take'' in the ESA obviated the need to define its common-law 
    Accordingly, it is reasonable to conclude that the MBTA's 
prohibition on killing is similarly limited to deliberate acts that 
result in bird deaths. See Newton County Wildlife Ass'n v. U.S. Forest 
Serv., 113 F.3d 110, 115 (8th Cir. 1997) (``MBTA's plain language 
prohibits conduct directed at migratory birds . . . . [T]he ambiguous 
terms `take' and `kill' in 16 U.S.C. 703 mean `physical conduct of the 
sort engaged in by hunters and poachers . . . .' ''

[[Page 5917]]

(quoting Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302 (9th Cir. 
1991))); United States v. Brigham Oil & Gas, 840 F. Supp. 2d 1202, 1208 
(D.N.D. 2012) (``In the context of the Act, `take' refers to conduct 
directed at birds, such as hunting and poaching, and not acts or 
omissions having merely the incidental or unintended effect of causing 
bird deaths''). This conclusion is also supported by the U.S. Fish and 
Wildlife Service's implementing regulations, which define ``take'' to 
mean ``to pursue, hunt, shoot, wound, kill, trap, capture, or collect'' 
or attempt to do the same. 50 CFR 10.12. The component actions of 
``take'' involve direct and purposeful actions to reduce animals to 
human control. As such, they ``reinforce [ ] the dictionary definition, 
and confirm [ ] that `take' does not refer to accidental activity or 
the unintended results of other conduct.'' Brigham Oil & Gas, 840 F. 
Supp. 2d at 1209. This interpretation does not render the words 
``take'' and ``kill'' redundant since each has its own discrete 
definition; indeed, one can hunt or pursue an animal without either 
killing it or taking it under the definitions relevant at the time the 
MBTA was enacted.
    Furthermore, the notion that ``take'' refers to an action directed 
immediately against a particular animal is supported by the use of the 
word ``take'' in the common law. As the Supreme Court has instructed, 
``absent contrary indications, Congress intends to adopt the common law 
definition of statutory terms.'' United States v. Shabani, 513 U.S. 10, 
13 (1994). As Justice Scalia noted, ``the term [`take'] is as old as 
the law itself.'' Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting). 
For example, the Digest of Justinian places ``take'' squarely in the 
context of acquiring dominion over wild animals, stating:

    [A]ll the animals which can be taken upon the earth, in the sea, 
or in the air, that is to say, wild animals, belong to those who 
take them. . . . Because that which belongs to nobody is acquired by 
the natural law by the person who first possesses it. We do not 
distinguish the acquisition of these wild beasts and birds by 
whether one has captured them on his own property [or] on the 
property of another; but he who wishes to enter into the property of 
another to hunt can be readily prevented if the owner knows his 
purpose to do so.

    Geer v. Connecticut, 161 U.S. 519, 523 (1896) (quoting Digest, Book 
41, Tit. 1, De Adquir. Rer. Dom.). Likewise, Blackstone's Commentaries 

    A man may lastly have a qualified property in animals feroe 
naturoe, propter privilegium, that is, he may have the privilege of 
hunting, taking and killing them in exclusion of other persons. Here 
he has a transient property in these animals usually called game so 
long as they continue within his liberty, and may restrain any 
stranger from taking them therein; but the instant they depart into 
another liberty, this qualified property ceases.

    Id. at 526-27 (1896) (quoting 2 Blackstone Commentary 410). Thus, 
under common law ``[t]o `take,' when applied to wild animals, means to 
reduce those animals, by killing or capturing, to human control.'' 
Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting); see also CITGO, 
801 F.3d at 489 (``Justice Scalia's discussion of `take' as used in the 
Endangered Species Act is not challenged here by the government . . . 
because Congress gave `take' a broader meaning for that statute.''). As 
is the case with the ESA, in the MBTA, ``[t]he taking prohibition is 
only part of the regulatory plan . . ., which covers all stages of the 
process by which protected wildlife is reduced to man's dominion and 
made the object of profit,'' and, as such, is ``a term of art deeply 
embedded in the statutory and common law concerning wildlife'' that 
``describes a class of acts (not omissions) done directly and 
intentionally (not indirectly and by accident) to particular animals 
(not populations of animals).'' Sweet Home, 515 U.S. at 718 (Scalia, 
J., dissenting). The common-law meaning of the term ``take'' is 
particularly important here because, unlike the ESA, which specifically 
defines the term ``take,'' the MBTA does not define ``take''--instead 
it includes the term in a list of similar actions. Thus, the Sweet Home 
majority's ultimate conclusion that Congress's decision to define 
``take'' in the ESA obviated the need to divine its common-law meaning 
is inapplicable here. See id. at 697, n.10. Instead, the opposite is 
    A number of courts, as well as the prior M-Opinion, have focused on 
the MBTA's direction that a prohibited act can occur ``at any time, by 
any means, in any manner'' to support the conclusion that the statute 
prohibits any activity that results in the death of a bird, which would 
necessarily include incidental take. However, the quoted statutory 
language does not change the nature of those prohibited acts and simply 
clarifies that activities directed at migratory birds, such as hunting 
and poaching, are prohibited whenever and wherever they occur and 
whatever manner is applied, be it a shotgun, a bow, or some other 
creative approach to deliberately taking birds. See generally CITGO, 
801 F.3d at 490 (``The addition of adverbial phrases connoting `means' 
and `manner,' however, does not serve to transform the nature of the 
activities themselves. For instance, the manner and means of hunting 
may differ from bowhunting to rifles, shotguns, and air rifles, but 
hunting is still a deliberately conducted activity. Likewise, rendering 
all-inclusive the manner and means of `taking' migratory birds does not 
change what `take' means, it merely modifies the mode of take.'').
    In reaching a contrary conclusion, Opinion M-37041 assumed that 
because section 703 of the MBTA is a strict-liability provision, 
meaning that no mens rea or criminal intent is required for a violation 
to have taken place, any act that takes or kills a bird must be covered 
as long as the act results in the death of a bird. In making that 
assumption, M-37041 improperly ignored the meaning and context of the 
actual acts prohibited by the statute. Instead, the opinion presumed 
that the lack of a mental state requirement for a misdemeanor violation 
of the MBTA equated to reading the prohibited acts ``kill'' and 
``take'' as broadly applying to actions not specifically directed at 
migratory birds, so long as the result was their death or injury. But 
the relevant acts prohibited by the MBTA are voluntary acts directed at 
reducing an animal to human control, such as when a hunter shoots a 
protected bird causing its death. The key remains that the actor was 
engaged in an activity the object of which was to render a bird subject 
to human control.
    By contrast, liability fails to attach to actions that are not 
directed toward rendering an animal subject to human control. Common 
examples of such actions include: driving a car, allowing a pet cat to 
roam outdoors, or erecting a windowed building. All of these actions 
could foreseeably result in the deaths of protected birds, and all 
would be violations of the MBTA under the now-withdrawn M-Opinion if 
they did in fact result in deaths of protected birds, yet none of these 
actions have as their object rendering any animal subject to human 
control. Because, under the present interpretation, no ``take'' has 
occurred within the meaning of the MBTA, the strict-liability 
provisions of the Act would not be triggered.
    The prior M-Opinion posited that amendments to the MBTA imposing 
mental state requirements for certain specific offenses were only 
necessary if no mental state is otherwise required. But the conclusion 
that the taking and killing of migratory birds is a strict-liability 
crime does not answer the separate question of what acts are 
criminalized under the statute. The Fifth Circuit agreed in CITGO, 
stating ``we disagree that because misdemeanor

[[Page 5918]]

MBTA violations are strict liability crimes, a `take' includes acts (or 
omissions) that indirectly or accidentally kill migratory birds.'' The 
court goes on to note that ``[a] person whose car accidentally collided 
with the bird . . . has committed no act `taking' the bird for which he 
could be held strictly liable. Nor do the owners of electrical lines 
`take' migratory birds who run into them. These distinctions are 
inherent in the nature of the word `taking' and reveal the strict 
liability argument as a non-sequitur.'' 801 F.3d at 493. Similarly, in 
Mahler v. U.S. Forest Serv., 927 F. Supp. 1559 (S.D. Ind. 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. Those who engage in 
such activity and who accidentally kill a protected migratory bird 
or who violate the limits on their permits may be charged with 
misdemeanors without proof of intent to kill a protected bird or 
intent to violate the terms of a permit. That does not mean, 
however, that Congress intended for ``strict liability'' to apply to 
all forms of human activity, such as cutting a tree, mowing a 
hayfield, or flying a plane. The 1986 amendment and corresponding 
legislative history reveal only an intention to close a loophole 
that might prevent felony prosecutions for commercial trafficking in 
migratory birds and their parts.
    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.

    927 F. Supp. at 1581 (referencing S. Rep. No. 99-445, at 16 (1986), 
reprinted in 1986 U.S.C.C.A.N. 6113, 6128). Thus, limiting the range of 
actions prohibited by the MBTA to those that are directed at migratory 
birds will focus prosecutions on activities like hunting and trapping 
and exclude more attenuated conduct, such as lawful commercial 
activity, that unintentionally and indirectly results in the death of 
migratory birds.

The History of the MBTA

    The history of the MBTA and the debate surrounding its adoption 
illustrate that the Act was part of Congress's efforts to regulate the 
hunting of migratory birds in direct response to the extreme over-
hunting, largely for commercial purposes, that had occurred over the 
years. See United States v. Moon Lake Electric Ass'n, 45 F. Supp. 2d 
1070, 1080 (D. Colo. 1999) (``the MBTA's legislative history indicates 
that Congress intended to regulate recreational and commercial 
hunting''); Mahler, 927 F. Supp. at 1574 (``The MBTA was designed to 
forestall hunting of migratory birds and the sale of their parts''). 
Testimony concerning the MBTA given by the Solicitor's Office for the 
Department of Agriculture underscores this focus:

    We people down here hunt [migratory birds]. The Canadians 
reasonably want some assurances from the United States that if they 
let those birds rear their young up there and come down here, we 
will preserve a sufficient supply to permit them to go back there.

Protection of Migratory Birds: Hearing on H.R. 20080 Before the House 
Comm. on Foreign Affairs, 64th Cong. 22-23 (1917) (statement of R.W. 
Williams, Solicitor's Office, Department of Agriculture). Likewise, the 
Chief of the Department of Agriculture's Bureau of Biological Survey 
noted that he ``ha[s] always had the idea that [passenger pigeons] were 
destroyed by overhunting, being killed for food and for sport.'' 
Protection of Migratory Birds: Hearing on H.R. 20080 Before the House 
Comm. on Foreign Affairs, 64th Cong. 11 (1917) (statement of E. W. 
Nelson, Chief Bureau of Biological Survey, Department of Agriculture).
    Statements from individual Congressmen evince a similar focus on 
hunting. Senator Smith, ``who introduced and championed the Act . . . 
in the Senate,'' Leaders in Recent Successful Fight for the Migratory 
Bird Treaty Act, Bulletin--The American Game Protective Association, 
July 1918, at 5, explained:

    Nobody is trying to do anything here except to keep pothunters 
from killing game out of season, ruining the eggs of nesting birds, 
and ruining the country by it. Enough birds will keep every insect 
off of every tree in America, and if you will quit shooting them 
they will do it.

55 Cong. Rec. 4816 (statement of Sen. Smith) (1917). Likewise, during 
hearings of the House Foreign Affairs Committee, Congressman Miller, a 
``vigorous fighter, who distinguished himself in the debate'' over the 
MBTA, Leaders in Recent Successful Fight for the Migratory Bird Treaty 
Act, Bulletin--The American Game Protective Association, July 1918, at 
5, put the MBTA squarely in the context of hunting:

    I want to assure you . . . that I am heartily in sympathy with 
this legislation. I want it to go through, because I am up there 
every fall, and I know what the trouble is. The trouble is in 
shooting the ducks in Louisiana, Arkansas, and Texas in the summer 
time, and also killing them when they are nesting up in Canada.

Protection of Migratory Birds: Hearing on H.R. 20080 Before the House 
Comm. on Foreign Affairs, 64th Cong. 7 (1917) (statement of Rep. 
    In seeking to take a broader view of congressional purpose, the 
Moon Lake court looked to other contemporary statements that cited the 
destruction of habitat, along with improvements in firearms, as a cause 
of the decline in migratory bird populations. The court even suggested 
that these statements, which ``anticipated application of the MBTA to 
children who act `through inadvertence' or `through accident,' '' 
supported a broader reading of the legislative history. Moon Lake, 45 
F. Supp. 2d at 1080-81. Upon closer examination, these statements are 
instead consistent with a limited reading of the MBTA.
    One such contemporary statement cited by the court is a letter from 
Secretary of State Robert Lansing to the President attributing the 
decrease in migratory bird populations to two general issues:
     Habitat destruction, described generally as ``the 
extension of agriculture, and particularly the draining on a large 
scale of swamps and meadows;'' and
     Hunting, described in terms of ``improved firearms and a 
vast increase in the number of sportsmen.''
These statements were referenced by Representative Baker during the 
House floor debate over the MBTA, implying that the MBTA was intended 
to address both issues. Moon Lake, 45 F. Supp. 2d at 1080-81 (quoting 
H. Rep. No. 65-243, at 2 (1918) (letter from Secretary of State Robert 
Lansing to the President)). However, Congress addressed hunting and 
habitat destruction in the context of the Migratory Bird Treaty through 
two separate acts:
     First, in 1918, Congress adopted the MBTA to address the 
direct and intentional killing of migratory birds;
     Second, in 1929, Congress adopted the Migratory Bird 
Conservation Act to ``more effectively'' implement the Migratory Bird 
Treaty by protecting certain migratory bird habitats.
The Migratory Bird Conservation Act provided the authority to purchase 
or rent land for the conservation of migratory birds, including for the 
establishment of inviolate ``sanctuaries'' wherein migratory bird 
habitats would be protected from persons ``cut[ting], burn[ing], or 
destroy[ing] any timber, grass, or other natural growth.'' Migratory 
Bird Conservation Act, section 10, 45 Stat. 1222, 1224 (1929)

[[Page 5919]]

(codified as amended at 16 U.S.C. 715-715s). If the MBTA was originally 
understood to protect migratory bird habitats from incidental 
destruction, enactment of the Migratory Bird Conservation Act eleven 
years later would have been largely superfluous. Instead, the MBTA and 
the Migratory Bird Conservation Act are complementary: ``Together, the 
Treaty Act in regulating hunting and possession and the Conservation 
Act by establishing sanctuaries and preserving natural waterfowl 
habitat help implement our national commitment to the protection of 
migratory birds.'' United States v. North Dakota, 650 F.2d 911, 913-14 
(8th Cir. 1981), aff'd on other grounds, 460 U.S. 300 (1983).
    Some courts have attempted to interpret a number of floor 
statements as supporting the notion that Congress intended the MBTA to 
regulate more than just hunting and poaching, but those statements 
reflect an intention to prohibit actions directed at birds--whether 
accomplished through hunting or some other means intended to directly 
kill birds. For example, some Members ``anticipated application of the 
MBTA to children who act `through inadvertence' or `through accident.' 

    What are you going to do in a case like this: A barefoot boy, as 
barefoot boys sometimes do, largely through inadvertence and without 
meaning anything wrong, happens to throw a stone at and strikes and 
injures a robin's nest and breaks one of the eggs, whereupon he is 
hauled before a court for violation of a solemn treaty entered into 
between the United States of America and the Provinces of Canada.

Moon Lake, 45 F. Supp. 2d at 1081 (quoting 56 Cong. Rec. 7455 (1918) 
(statement of Rep. Mondell)). ``[I]nadvertence'' in this statement 
refers to the boy's mens rea. As the rest of the sentence clarifies, 
the hypothetical boy acted ``without meaning anything wrong,'' not that 
he acted unintentionally or accidentally in damaging the robin's nest. 
This is reinforced by the rest of the hypothetical, which posits that 
the boy threw ``a stone at and strikes and injures a robin's nest.'' 
The underlying act is directed specifically at the robin's nest. In 
other statements various members of Congress expressed concern about 
``sportsmen,'' people ``killing'' birds, ``shooting'' of game birds or 
``destruction'' of insectivorous birds, and whether the purpose of the 
MBTA was to favor a steady supply of ``game animals for the upper 
classes.'' Moon Lake, 45 F. Supp. 2d at 1080-81. One Member of Congress 
even offered a statement that explains why the statute is not redundant 
in its use of the various terms to explain what activities are 
regulated: ``[T]hey cannot hunt ducks in Indiana in the fall, because 
they cannot kill them. I have never been able to see why you cannot 
hunt, whether you kill or not. There is no embargo on hunting, at least 
down in South Carolina . . . .' '' Id. at 1081 (quoting 56 Cong. Rec. 
7446 (1918) (statement of Rep. Stevenson)). That Congress was animated 
regarding potential restrictions on hunting and its impact on 
individual hunters is evident from even the statements relied upon as 
support for the conclusion that the statute reaches incidental take.
    Finally, in 1918, Federal regulation of the hunting of wild birds 
was a highly controversial and legally fraught subject. For example, on 
the floor of the Senate, Senator Reed proclaimed:

    I am opposed not only now in reference to this bill [the MBTA], 
but I am opposed as a general proposition to conferring power of 
that kind upon an agent of the Government. . . .
    . . . Section 3 proposes to turn these powers over to the 
Secretary of Agriculture . . . to make it a crime for a man to shoot 
game on his own farm or to make it perfectly legal to shoot it on 
his own farm . . . .
    When a Secretary of Agriculture does a thing of that kind I have 
no hesitancy in saying that he is doing a thing that is utterly 
indefensible, and that the Secretary of Agriculture who does it 
ought to be driven from office . . . .

55 Cong. Rec. 4813 (1917) (statement of Sen. Reed).
    Federal regulation of hunting was also legally tenuous at that 
time. Whether the Federal Government had any authority to regulate the 
killing or taking of any wild animal was an open question in 1918. Just 
over 20 years earlier, the Supreme Court in Geer had ruled that the 
States exercised the power of ownership over wild game in trust, 
implicitly precluding Federal regulation. See Geer v. Connecticut, 161 
U.S. 519 (1896). When Congress did attempt to assert a degree of 
Federal jurisdiction over wild game with the 1913 Weeks-McLean Law, it 
was met with mixed results in the courts, leaving the question pending 
before the Supreme Court at the time of the MBTA's enactment. See, 
e.g., United States v. Shaver, 214 F. 154, 160 (E.D. Ark. 1914); United 
States v. McCullagh, 221 F. 288 (D. Kan. 1915). It was not until 
Missouri v. Holland in 1920 that the Court, relying on authority 
derived from the Migratory Bird Treaty (Canada Convention) under the 
Treaty Clause of the U.S. Constitution, definitively acknowledged the 
Federal Government's ability to regulate the taking of wild birds. 252 
U.S. 416, 432-33 (1920).
    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.
    The provisions of the 1916 Canada Convention provide support for 
this conclusion by authorizing only certain circumscribed activities 
specifically directed at migratory birds. The Convention authorizes 
hunting only during prescribed open seasons, and take at any time for 
other limited purposes such as scientific use, propagation, or to 
resolve conflicts under extraordinary conditions when birds become 
seriously injurious to agricultural or other interests. See Canada 
Convention, Art. II-VII, 39 Stat. 1702.
    Subsequent legislative history does not undermine a limited 
interpretation of the MBTA, as enacted in 1918. The ``fixed-meaning 
canon of statutory construction directs that ``[w]ords must be given 
the meaning they had when the text was adopted.'' Scalia & Garner at 
78. The meaning of written instruments ``does not alter. That which it 
meant when adopted, it means now.'' South Carolina v. United States, 
199 U.S. 437, 448 (1905).
    The operative language in section 2 of the MBTA has changed little 
since its adoption in 1918. The current iteration of the relevant 
language--making it unlawful for persons ``at any time, by any means or 
in any manner, to pursue, hunt, take, capture, kill, attempt to take, 
capture, or kill, possess'' specific migratory birds--was adopted in 
1935 as part of the Mexico Treaty Act and has remained unchanged since 
then. Compare Mexico Treaty Act, 49 Stat. 1555, section 3 with 16 
U.S.C. 703(a). As with the 1916 Canada Convention, the Mexico 
Convention focused primarily on hunting and establishing protections 
for birds in the context of take and possession for commercial use. See 
Convention between the United States of America and Mexico for the 
Protection of Migratory Birds and Game Mammals, 50 Stat. 1311 (Feb. 7, 
1936) (Mexico Convention). Subsequent Protocols amending both these 
Conventions also did not explicitly address incidental take or 
otherwise broaden their scope to prohibit anything other than 
purposeful take of migratory birds. See Protocol between the Government 
of the United States and the Government of Canada Amending the 1916 
Convention between the United Kingdom and the United States of America 
for the protection of

[[Page 5920]]

Migratory Birds, Sen. Treaty Doc. 104-28 (Dec. 14, 1995) (outlining 
conservation principles to ensure long-term conservation of migratory 
birds, amending closed seasons, and authorizing indigenous groups to 
harvest migratory birds and eggs throughout the year for subsistence 
purposes); Protocol between the Government of the United States of 
America and the Government of the United Mexican States Amending the 
Convention for Protection of Migratory Birds and Game Mammals, Sen. 
Treaty Doc. 105-26 (May 5, 1997) (authorizing indigenous groups to 
harvest migratory birds and eggs throughout the year for subsistence 
    It was not until more than 50 years after the initial adoption of 
the MBTA and 25 years after the Mexico Treaty Act that Federal 
prosecutors began applying the MBTA to incidental actions. See Lilley & 
Firestone at 1181 (``In the early 1970s, United States v. Union Texas 
Petroleum [No. 73-CR-127 (D. Colo. Jul. 11, 1973)] marked the first 
case dealing with the issue of incidental take.''). This newfound 
Federal authority was not accompanied by any corresponding legislative 
change. The only contemporaneous changes to section 2 of the MBTA were 
technical updates recognizing the adoption of a treaty with Japan. See 
Act of June 1, 1974, Public Law 93-300, 88 Stat. 190. Implementing 
legislation for the treaty with the Soviet Union also did not amend 
section 2. See Fish and Wildlife Improvement Act of 1978, Public Law 
95-616, sec. 3(h), 92 Stat. 3110. Similar to the earlier Conventions, 
the provisions of the Japan and Russia Conventions authorized 
purposeful take for specific activities such as hunting, scientific, 
educational and propagation purposes, and protection against injury to 
persons and property. However, they also outlined mechanisms to protect 
habitat and prevent damage from pollution and other environmental 
degradation (domestically implemented by the Migratory Bird 
Conservation Act and other applicable Federal laws). See Convention 
between the Government of the United States and the Government of Japan 
for the Protection of Migratory birds and Birds in Danger of 
Extinction, and their Environment, 25 U.S.T. 3329, T.I.A.S. No. 7990 
(Mar. 4, 1972) (Japan Convention); Convention between the United States 
of America and the Union of Soviet Socialist Republics Concerning the 
Conservation of Migratory Birds and their Environment, T.I.A.S. No. 
9073 (Nov. 19, 1976) (Russia Convention).
    No changes were made to the section of the MBTA at issue here 
following the later conventions except that the Act was modified to 
include references to these later agreements. Certainly other Federal 
laws may require consideration of potential impacts to birds and their 
habitat in a way that furthers the goals of the Conventions' broad 
statements. See, e.g., Mahler, 927 F. Supp. at 1581 (``Many other 
statutes enacted in the intervening years also counsel against reading 
the MBTA to prohibit any and all migratory bird deaths resulting from 
logging activities in national forests. As is apparent from the record 
in this case, the Forest Service must comply with a myriad of statutory 
and regulatory requirements to authorize even the very modest type of 
salvage logging operation of a few acres of dead and dying trees at 
issue in this case. Those laws require the Forest Service to manage 
national forests so as to balance many competing goals, including 
timber production, biodiversity, protection of endangered and 
threatened species, human recreation, aesthetic concerns, and many 
others.''). Given the overwhelming evidence that the primary purpose of 
section 2, as amended by the Mexico Treaty Act, was to control over-
hunting, the references to the later agreements do not bear the weight 
of the conclusion reached by the prior Opinion (M-37041).
    Thus, the only legislative enactment concerning incidental activity 
under the MBTA is the 2003 appropriations bill that explicitly exempted 
military-readiness activities from liability under the MBTA for 
incidental takings. See Bob Stump National Defense Authorization Act 
for Fiscal Year 2003, Public Law 107-314, Div. A, Title III, section 
315, 116 Stat. 2509 (2002), reprinted in 16 U.S.C.A. 703, Historical 
and Statutory Notes. There is nothing in this legislation that 
authorizes the government to pursue incidental takings charges in other 
contexts. Rather, some have ``argue[d] that Congress expanded the 
definition of `take' by negative implication'' since ``[t]he exemption 
did not extend to the `operation of industrial facilities,' even though 
the government had previously prosecuted activities that indirectly 
affect birds.'' CITGO, 801 F.3d at 490-91.
    This argument is contrary to the Court's admonition that ``Congress 
. . . does not alter the fundamental details of a regulatory scheme in 
vague terms or ancillary provisions--it does not, one might say, hide 
elephants in mouseholes.'' Whitman v. Am. Trucking Ass'ns, 531 U.S. 
457, 468 (2001). As the Fifth Circuit explained, ``[a] single carve-out 
from the law cannot mean that the entire coverage of the MBTA was 
implicitly and hugely expanded.'' CITGO, 801 F.3d at 491. Rather, it 
appears Congress acted in a limited fashion to preempt a specific and 
immediate impediment to military-readiness activities. ``Whether 
Congress deliberately avoided more broadly changing the MBTA or simply 
chose to address a discrete problem, the most that can be said is that 
Congress did no more than the plain text of the amendment means.'' Id. 
It did not hide the elephant of incidental takings in the mouse hole of 
a narrow appropriations provision.

Constitutional Issues

    The Supreme Court has recognized that ``[a] fundamental principle 
in our legal system is that laws which regulate persons or entities 
must give fair notice of conduct that is forbidden or required.'' FCC 
v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). ``No one 
may be required at peril of life, liberty or property to speculate as 
to the meaning of penal statutes.'' Lanzetta v. New Jersey, 306 U.S. 
451, 453 (1939). Accordingly, a ``statute which either forbids or 
requires the doing of an act in terms so vague that men of common 
intelligence must necessarily guess at its meaning and differ as to its 
application, violates the first essential of due process of law.'' Fox 
Television, 567 U.S. at 253 (quoting Connally v. General Constr. Co., 
269 U.S. 385, 391 (1926)). Thus, ``[a] conviction or punishment fails 
to comply with due process if the statute or regulation under which it 
is obtained `fails to provide a person of ordinary intelligence fair 
notice of what is prohibited, or is so standardless that it authorizes 
or encourages seriously discriminatory enforcement.''' Id. (quoting 
United States v. Williams, 553 U.S. 285, 304 (2008)).
    Assuming, arguendo, that the MBTA is ambiguous, the interpretation 
that limits its application to conduct that is specifically directed at 
birds is necessary to avoid potential constitutional concerns. As the 
Court has advised, ``where an otherwise acceptable construction of a 
statute would raise serious constitutional problems, the Court will 
construe the statute to avoid such problems unless such construction is 
plainly contrary to the intent of Congress.'' Edward J. DeBartolo Corp. 
v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 
(1988). Here, an attempt to impose liability for acts that are not 
directed at migratory birds raises just such constitutional concerns.
    The ``scope of liability'' under an interpretation of the MBTA that 
extends criminal liability to all persons who kill or take migratory 
birds incidental to another activity is ``hard to overstate,''

[[Page 5921]]

CITGO, 801 F.3d at 493, and ``offers unlimited potential for criminal 
prosecutions.'' Brigham Oil, 840 F. Supp. 2d at 1213. ``The list of 
birds now protected as `migratory birds' under the MBTA is a long one, 
including many of the most numerous and least endangered species one 
can imagine.'' Mahler, 927 F. Supp. at 1576. Currently, over 1,000 
species of birds--including ``all species native to the United States 
or its territories''--are protected by the MBTA. 78 FR 65,844, 65,845 
(Nov. 1, 2013); see also 50 CFR 10.13 (list of protected migratory 
birds); Migratory Bird Permits; Programmatic Environmental Impact 
Statement, 80 FR 30032, 30033 (May 26, 2015) (``Of the 1,027 currently 
protected species, approximately 8% are either listed (in whole or in 
part) as threatened or endangered under the Endangered Species Act 
(ESA) (16 U.S.C. 1531 et seq.) and 25% are designated (in whole or in 
part) as Birds of Conservation Concern (BCC).''). Service analysis 
indicates that the top threats to birds are:
     Cats, which kill an estimated 2.4 billion birds per year;
     Collisions with building glass, which kill an estimated 
599 million birds per year;
     Collisions with vehicles, which kill an estimated 214.5 
million birds per year;
     Chemical poisoning (e.g., pesticides and other toxins), 
which kill an estimated 72 million birds per year;
     Collisions with electrical lines, which kill an estimated 
25.5 million birds per year;
     Collisions with communications towers, which kill an 
estimated 6.6 million birds per year;
     Electrocutions, which kill an estimated 5.6 million birds 
per year;
     Oil pits, which kill an estimated 750 thousand birds per 
year; and
     Collisions with wind turbines, which kill an estimated 234 
thousand birds per year.
    U.S. Fish and Wildlife Service, Threats to Birds: Migratory Birds 
Mortality--Questions and Answers, available at https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php (last updated September 14, 

Interpreting the MBTA to apply strict criminal liability to any 
instance where a migratory bird is killed as a result of these threats 
would certainly be a clear and understandable rule. See United States 
v. Apollo Energies, Inc., 611 F.3d 679, 689 (10th Cir. 2010) 
(concluding that under an incidental take interpretation, ``[t]he 
actions criminalized by the MBTA may be legion, but they are not 
vague''). But it would also turn the majority of Americans into 
potential criminals. See Mahler, 927 F. Supp. 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)). Such an interpretation could lead to absurd results, which 
are to be avoided. See Griffin v. Oceanic Contractors, 458 U.S. 564, 
575 (1982) (``interpretations of a statute which would produce absurd 
results are to be avoided if alternative interpretations consistent 
with the legislative purpose are available''); see also K Mart Corp. v. 
Cartier, 486 U.S. 281, 324 n.2 (1988) (Scalia, J. concurring in part 
and dissenting in part) (``it is a venerable principle that a law will 
not be interpreted to produce absurd results.'').
    These potentially absurd results are not ameliorated by limiting 
the definition of ``incidental take'' to ``direct and foreseeable'' 
harm as some courts have suggested. See U.S. Fish and Wildlife Service 
Manual, part 720, ch. 3, Incidental Take Prohibited Under the Migratory 
Bird Treaty Act (Jan. 11, 2017). The court in Moon Lake identified an 
``important and inherent limiting feature of the MBTA's misdemeanor 
provision: To obtain a guilty verdict . . ., the government must prove 
proximate causation.'' Moon Lake, 45 F. Supp. 2d at 1085. Quoting 
Black's Law Dictionary, the court defines proximate cause as ``that 
which, in a natural and continuous sequence, unbroken by any efficient 
intervening cause, produces the injury and without which the accident 
could not have happened, if the injury be one which might be reasonably 
anticipated or foreseen as a natural consequence of the wrongful act.'' 
Id. (quoting Black's Law Dictionary 1225 (6th ed. 1990)) (emphasis in 
original). The Tenth Circuit in Apollo Energies took a similar 
approach, holding ``the MBTA requires a defendant to proximately cause 
the statute's violation for the statute to pass constitutional muster'' 
and quoting from Black's Law Dictionary to define ``proximate cause.'' 
Apollo Energies, 611 F.3d at 690.
    Contrary to the suggestion of the courts in Moon Lake and Apollo 
Energies that principles of proximate causation can be read into the 
statute to define and limit the scope of incidental take, the death of 
birds as a result of activities such as driving, flying, or maintaining 
buildings with large windows is a ``direct,'' ``reasonably 
anticipated,'' and ``probable'' consequence of those actions. As 
discussed above, collisions with buildings and cars are the second and 
third most common human-caused threat to birds, killing an estimated 
599 million and 214.5 million birds per year, respectively. It is 
eminently foreseeable and probable that cars and windows will kill 
birds. Thus, limiting incidental take to direct and foreseeable results 
does little to prevent absurd outcomes.
    To avoid these absurd results, the government has historically 
relied on prosecutorial discretion. See Ogden at 29 (``Historically, 
the limiting mechanism on the prosecution of incidental taking under 
the MBTA by non-federal persons has been the exercise of prosecutorial 
discretion by the FWS.''); see generally FMC, 572 F.2d at 905 
(situations ``such as deaths caused by automobiles, airplanes, plate 
glass modern office buildings or picture windows in residential 
dwellings . . . properly can be left to the sound discretion of 
prosecutors and the courts''). Yet, the Supreme Court has declared 
``[i]t will not do to say that a prosecutor's sense of fairness and the 
Constitution would prevent a successful . . . prosecution for some of 
the activities seemingly embraced within the sweeping statutory 
definitions.'' Baggett v. Bullitt, 377 U.S. 360, 373 (1964); see also 
Mahler, 927 F. Supp. 1582 (``Such trust in prosecutorial discretion is 
not really an answer to the issue of statutory construction'' in 
interpreting the MBTA.). For broad statutes that may be applied to 
seemingly minor or absurd situations, ``[i]t is no answer to say that 
the statute would not be applied in such a case.'' Keyishian v. Bd. of 
Regents, 385 U.S. 589, 599 (1967).
    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 
term ``extrahazardous activities'' is not found anywhere in the 
statute, and is not defined by either the court or the Service. See 
Mahler, 927 F. Supp. at 1583 n.9 (noting that the FMC court's 
``limiting principle . . . of strict liability for hazardous commercial 
activity . . . ha[s] no apparent basis in the statute itself or in the 
prior history of the MBTA's application since its enactment''); cf. 
United States v. Rollins, 706 F. Supp. 742, 744-45 (D. Idaho 1989) 
(``The statute itself does not state that poisoning of migratory birds 
by pesticide constitutes a criminal violation. Such specificity would 
not have been difficult to draft into the statute''). Thus, it is 
unclear what activities are ``extrahazardous.'' In FMC, the concept was 
applied to the

[[Page 5922]]

manufacture of ``toxic chemicals,'' i.e., pesticides. But the court was 
silent as to how far this rule extends, even in the relatively narrow 
context of pesticides.
    This type of uncertainty could be problematic under the Supreme 
Court's due process jurisprudence. See Rollins, 706 F. Supp. at 745 
(dismissing charges against a farmer who applied pesticides to his 
fields that killed a flock of geese, reasoning ``[f]armers have a right 
to know what conduct of theirs is criminal, especially where that 
conduct consists of common farming practices carried on for many years 
in the community. While statutes do not have to be drafted with 
`mathematical certainty,' they must be drafted with a `reasonable 
degree of certainty.' The MBTA fails this test. . . . Under the facts 
of this case, the MBTA does not give `fair notice as to what 
constitutes illegal conduct' so that [the farmer] could `conform his 
conduct to the requirements of the law.' '' (internal citations 
    While the MBTA does contemplate the issuance of permits authorizing 
the taking of wildlife, it requires such permits to be issued by 
``regulation.'' See 16 U.S.C. 703(a) (``Unless and except as permitted 
by regulations made as hereinafter provided . . ..'' (emphasis added)). 
No regulations have been issued to create a permit scheme to authorize 
incidental take, so most potential violators have no formal mechanism 
to ensure that their actions comply with the law. There are voluntary 
Service guidelines issued for different industries that recommend best 
practices to avoid incidental take of protected birds; however, these 
guidelines provide only limited protection to potential violators. 
Moreover, most of the Service's MBTA guidelines have not gone through 
the formal Administrative Procedure Act processes to be considered 
``regulations'' and thus are not issued under the permitting authority 
of section 3 of the MBTA.
    In the absence of a permit issued pursuant to Departmental 
regulation, it is not clear that the Service has any authority under 
the MBTA to require minimizing or mitigating actions that balance the 
environmental harm from the taking of migratory birds with other 
societal goals, such as the production of wind or solar energy. 
Accordingly, the guidelines do not provide enforceable legal 
protections for people and businesses who abide by their terms. To wit, 
the guidelines themselves state that ``it is not possible to absolve 
individuals or companies'' from liability under the MBTA. Rather, the 
guidelines are explicit that the Service may only take full compliance 
into consideration in exercising its discretion whether or not to refer 
an individual or company to the Department of Justice for prosecution. 
See, e.g., U.S. Fish and Wildlife Service, Land-Based Wind Energy 
Guidelines 6 (Mar. 23, 2012).
    Under this approach, it is literally impossible for individuals and 
companies to know exactly what is required of them under the law when 
otherwise lawful activities necessarily result in accidental bird 
deaths. Even if they comply with everything requested of them by the 
Service, they may still be prosecuted, and still found guilty of 
criminal conduct. See generally United States v. FMC Corp., 572 F.2d 
902, 904 (2d Cir. 1978) (the court instructed the jury not to consider 
the company's remediation efforts as a defense: ``Therefore, under the 
law, good will and good intention and measures taken to prevent the 
killing of the birds are not a defense.''). In sum, due process 
``requires legislatures to set reasonably clear guidelines for law 
enforcement officials and triers of fact in order to prevent `arbitrary 
and discriminatory enforcement.' '' Smith v. Goguen, 415 U.S. 566, 572-
73 (1974).
    Reading the MBTA to capture incidental takings could potentially 
transform average Americans into criminals. The text, history, and 
purpose of the MBTA demonstrate instead that it is a law limited in 
relevant part to actions, such as hunting and poaching, that reduce 
migratory birds and their nests and eggs to human control by killing or 
capturing. Even assuming that the text could be subject to multiple 
interpretations, courts and agencies are to avoid interpreting 
ambiguous laws in ways that raise constitutional doubts if alternative 
interpretations are available. Thus, interpreting the MBTA to 
criminalize incidental takings raises potential due process concerns. 
Based upon the text, history, and purpose of the MBTA, and consistent 
with decisions in the Courts of Appeals for the Fifth, Eighth, and 
Ninth circuits, there is an alternative interpretation that avoids 
these concerns. Therefore, as a matter of law, the scope of the MBTA 
does not include incidental take.

Policy Analysis of Incidental Take Under the MBTA

    As detailed above, the Service agrees that the conclusion in 
Opinion M-37050 that the MBTA's prohibitions on pursuing, hunting, 
taking, capturing, killing, or attempting to do the same apply only to 
actions directed at migratory birds, their nests, or their eggs is 
compelled as a matter of law. In addition, even if such a conclusion is 
not legally compelled, the Service proposes to adopt it as a matter of 
    The Service's prior approach to incidental take was enacted without 
public input, and has resulted in regulatory uncertainty and 
inconsistency. Prosecutions for incidental take occurred in the 1970s 
without any accompanying change in either the underlying statute or 
Service regulations. Accordingly, an interpretation with implications 
for large portions of the American economy was implicitly adopted 
without public debate. Subsequently, the Service has sought to limit 
the potential reach of MBTA liability by pursuing enforcement 
proceedings only against persons who fail to take what the Service 
considers ``reasonable'' precautions against foreseeable risks.
    Based upon the Service's analysis of manmade threats to migratory 
birds and the Service's own enforcement history, common activities such 
as owning and operating a power line, wind farm, or drilling operation 
pose an inherent risk of incidental take. An expansive reading of the 
MBTA that includes an incidental take prohibition would subject those 
who engage in these common, and necessary, activities to criminal 
    As described in M-37050, this approach effectively leaves otherwise 
lawful, productive, and often necessary businesses to take their 
chances and hope they avoid prosecution, not because their conduct is 
or even can be in strict compliance with the law, but because the 
government has chosen to forgo prosecution. Productive and otherwise 
lawful economic activity should not be functionally dependent upon the 
ad hoc exercise of enforcement discretion.
    Further, as a practical matter, inconsistency and uncertainty are 
built into the MBTA enforcement regime by virtue of a split between 
Federal Courts of Appeals. Courts have adopted different views on 
whether section 2 of the MBTA prohibits incidental take, and, if so, to 
what extent. Courts of Appeals 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, generally with some form of limiting construction. See 
United States v. FMC Corporation, 572 F.2d 902 (2d Cir. 1978); United 
States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010); United 
States v. Corbin Farm Serv., 444 F. Supp. 510 (E.D. Cal. 1978); Ctr. 
for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002), 
vacated on other grounds sub nom. Ctr.

[[Page 5923]]

for Biological Diversity v. England, 2003 App. LEXIS 1110 (D.C. Cir. 
    By contrast, Courts of Appeals in the Fifth, Eighth, and Ninth 
Circuits, as well as district courts in the Third and Seventh Circuits, 
have indicated that it does not.\1\ See United States v. CITGO 
Petroleum Corp., 801 F.3d 477 (5th Cir. 2015); Newton County Wildlife 
Ass'n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. 1997); Seattle 
Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991); Mahler v. U.S. 
Forest Serv., 927 F. Supp. 1559 (S.D. Ind. 1996); Curry v. U.S. Forest 
Serv., 988 F. Supp. 541, 549 (W.D. Pa. 1997).

    \1\ The Court of Appeals for the Ninth Circuit distinguished, 
without explicitly overturning, an earlier district-court decision 
concerning incidental take.

    As a result of these cases, the Federal Government is clearly 
prohibited from enforcing an incidental take prohibition in the Fifth 
Circuit. In the Eighth Circuit, the Federal Government has previously 
sought to distinguish court of appeals rulings limiting the scope of 
the MBTA to the habitat-destruction context. See generally Apollo 
Energies, 611 F.3d at 686 (distinguishing the Eighth Circuit decision 
in Newton County on the grounds that it involved logging that modified 
a bird's habitat in some way). However, that argument was rejected by a 
subsequent district court. See United States v. Brigham Oil & Gas, 
L.P., 840 F. Supp. 2d 1202 (D.N.D. 2012). Likewise, the Federal 
Government has sought to distinguish holdings in the habitat-
destruction context in the Ninth Circuit. See United States v. Moon 
Lake Electrical Ass'n, 45 F. Supp. 2d 1070, 1075-76 (D. Colo. 1999) 
(suggesting that the Ninth Circuit's ruling in Seattle Audubon may be 
limited to habitat modification or destruction). In the Second and 
Tenth Circuits, the Federal Government can apply the MBTA to incidental 
take, albeit with differing judicial limitations.
    These cases demonstrate the potential for a convoluted patchwork of 
legal standards, all purporting to apply the same underlying law. The 
MBTA is a national law. Many of the companies and projects that face 
potential liability under the MBTA operate across boundary lines for 
judicial circuits. Yet what is legal in the Fifth and Eighth Circuits 
may become illegal as soon as an operator crosses State lines into the 
bordering Tenth Circuit, or become a matter of uncertainty in the Ninth 
Circuit. 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. The most effective way to reduce uncertainty and have a 
truly national standard is for the Service to codify and apply a 
uniform interpretation of the MBTA that its prohibitions do not apply 
to incidental take, based upon the Fifth Circuit's ruling in CITGO 
Petroleum Corporation.
    Therefore, as a matter of both law and policy, the Service proposes 
to adopt a regulation limiting the scope of the MBTA to actions that 
are directed at migratory birds, their nests, or their eggs, and to 
clarify that injury to or mortality of migratory birds that results 
from, but is not the purpose of, an action (i.e., incidental taking or 
killing) is not prohibited by the Migratory Bird Treaty Act.

Public Comments

    You may submit your comments and supporting materials by one of the 
methods listed in ADDRESSES. We will not consider comments sent by 
email or fax, or written comments sent to an address other than the one 
listed in ADDRESSES.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, are available 
for public inspection at http://www.regulations.gov. We will post your 
entire comment--including your personal identifying information--on 
http://www.regulations.gov. You may request at the top of your document 
that we withhold personal information such as your street address, 
phone number, or email address from public review; however, we cannot 
guarantee that we will be able to do so.
    We invite the public to provide information on the following 
topics: (1) The avoidance, minimization, and mitigation measures 
entities employed to address incidental take of migratory birds, and 
the degree to which these measures reduce bird mortality; (2) the 
extent that avoidance, minimization, and mitigation measures continue 
to be used, and will continue to be used if this proposed rule is 
finalized; (3) the direct costs associated with implementing these 
measures; (4) indirect costs entities have incurred related to the 
legal risk of prosecution for incidental take of migratory birds (e.g., 
legal fees, increased interest rates on financing, insurance, 
opportunity costs); (5) the sources and scale of incidental bird 
mortality; and (6) any quantitative information regarding ecosystem 
services provided by migratory birds. This information will be used to 
better inform the cost and benefit analysis of this rulemaking.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed rule in a manner 
consistent with these requirements.
    Codifying the Solicitor's Opinion, M-37050, into Federal 
regulations would provide the public, businesses, government agencies, 
and other entities legal clarity and certainty regarding what is and is 
not prohibited under the MBTA. It is anticipated that some entities 
that currently employ mitigation measures to reduce or eliminate 
incidental migratory bird take would reduce or curtail these activities 
given the legal certainty provided by this proposed regulation. Others 
may continue to employ these measures voluntarily for various reasons, 
including continued compliance with other Federal, State, and local 
laws and regulations.
    The Service does not have information available to quantify these 
potential cost savings. Given our lack of specific data to estimate the 
cost savings from reduced implementation of mitigation measures and 
increased legal certainty, we ask for such data to inform analysis of 
the proposed rule's potential effects.

Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish a notice of

[[Page 5924]]

rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small businesses, small 
organizations, and small government jurisdictions. However, in lieu of 
an initial or final regulatory flexibility analysis (IRFA or FRFA) the 
head of an agency may certify on a factual basis that the rule would 
not have a significant economic impact on a substantial number of small 
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule would not have a significant economic impact on a 
substantial number of small entities. Thus, for an initial/final 
regulatory flexibility analysis to be required, impacts must exceed a 
threshold for ``significant impact'' and a threshold for a 
``substantial number of small entities.'' See 5 U.S.C. 605(b). This 
analysis first estimates the number of businesses impacted and then 
estimates the economic impact of the rule.
    Table 1 lists the industry sectors likely impacted by the proposed 
rule. These are the industries that typically incidentally take 
substantial numbers of birds and that the Service has worked with to 
reduce those effects. In some cases, these industries have been subject 
to enforcement actions and prosecutions under the MBTA prior to the 
issuance of the M-Opinion. The vast majority of entities in these 
sectors are small entities, based on the U.S. Small Business 
Administration (SBA) small business size standards.

                         Table 1--Distribution of Businesses Within Affected Industries
                                                                                  Small business     Number of
           NAICS industry description               NAICS code       Number of     size standard       small
                                                                    businesses      (employees)     businesses
Finfish Fishing.................................          114111           1,210        \(a)\ 20           1,185
Crude Petroleum and Natural Gas Extraction......          211111           6,878          1,250s           6,868
Drilling Oil and Gas Wells......................          213111           2,097          1,000s           2,092
Solar Electric Power Generation.................          221114             153            250s             153
Wind Electric Power Generation..................          221115             264            250s             263
Electric Bulk Power Transmission................          221121             261            500s             214
Electric Power Distribution.....................          221122           7,557          1,000s           7,520
Wireless Telecommunications Carriers (except              517312          15,845          1,500s          15,831
Source: U.S. Census Bureau, 2012 County Business Patterns.
\a\Note: The Small Business Administration size standard for finfish fishing is $22 million. Neither Economic
  Census, Agriculture Census, or NMFS collect business data by revenue size for the finfish industry. Therefore,
  we employ other data to approximate the number of small businesses. Source: U.S. Census Bureau, 2017 Economic
  Annual Survey.

    Since the Service does not have a permitting system authorizing 
incidental take of migratory birds, the Service does not have specific 
information regarding how many businesses in each sector implement 
measures to reduce incidental take of birds. Not all businesses in each 
sector incidentally take birds. In addition, a variety of factors would 
influence whether, under the previous interpretation of the MBTA, 
businesses would implement such measures. It is also unknown how many 
businesses continued or reduced practices to reduce the take of birds 
since publication of the Solicitor's M-Opinion.
    This proposed rule is deregulatory in nature and is thus likely to 
have a positive economic impact on all regulated entities, and many of 
these entities likely qualify as small businesses under the Small 
Business Administration's threshold standards (see Table 1). By 
codifying the M-Opinion, this proposal would remove legal uncertainty 
for any individual, government entity, or business entity that 
undertakes any activity that may kill or take migratory birds 
incidental to otherwise lawful activity. Such small entities would 
benefit from this proposed rule because it would remove uncertainty 
about the potential impacts of proposed projects. Therefore, these 
entities will have better information for planning projects and 
achieving goals.
    However, the economic impact of the proposed rule on small entities 
is likely not significant. The costs of actions businesses typically 
implement to reduce effects on birds are small compared to the economic 
output of business, including small businesses, in these sectors. In 
addition, many businesses will continue to take actions to reduce 
effects on birds because these actions are best management practices 
for their industry or are required by other Federal or State 
regulations, there is a public desire to continue them, or the 
businesses simply desire to reduce their effects on migratory birds. 
Table 2 summarizes likely economic effects of the proposed rule on the 
business sectors identified in Table 1.

                            Table 2--Summary of Economic Effects on Small Businesses
                                                 Bird mitigation
  NAICS industry description      NAICS code     measures with no    Economic effects on         Rationale
                                                      action          small businesses
Finfish Fishing...............           11411  Changes in design  Likely minimal effects  Longline fishing is
                                                 of longline                                regulated by the
                                                 fishing hooks,                             National Marine
                                                 change in offal                            Fisheries Service
                                                 management                                 under the Magnuson-
                                                 practices, and                             Stevens Fishery
                                                 flagging/                                  Conservation and
                                                 streamers on                               Management Act and
                                                 fishing lines.                             other laws and
                                                                                            regulations that
                                                                                            limit bi-catch;
                                                                                            thus, continuation
                                                                                            of these mitigation
                                                                                            measures is likely.

[[Page 5925]]

Crude Petroleum and Natural             211111  Using closed       Likely minimal effects  Several States have
 Gas Extraction.                                 waste water                                regulations
                                                 systems or                                 governing the
                                                 netting of oil                             treatment of oil
                                                 pits and ponds.                            pits, including
                                                                                            measures beneficial
                                                                                            to birds. In
                                                                                            addition, much of
                                                                                            the industry is
                                                                                            increasingly using
                                                                                            closed systems,
                                                                                            which do not pose a
                                                                                            risk to birds. For
                                                                                            these reasons, the
                                                                                            proposed rule is
                                                                                            unlikely to affect a
                                                                                            significant number
                                                                                            of small entities.
Drilling Oil and Gas Wells....          213111  Using closed       Likely minimal effects  Several States have
                                                 waste water                                regulations
                                                 systems or                                 governing the
                                                 netting of oil                             treatment of oil
                                                 pits and ponds.                            pits, including
                                                                                            measures beneficial
                                                                                            to birds. In
                                                                                            addition, much of
                                                                                            the industry is
                                                                                            increasingly using
                                                                                            closed systems,
                                                                                            which do not pose a
                                                                                            risk to birds. For
                                                                                            these reasons, the
                                                                                            proposed rule is
                                                                                            unlikely to affect a
                                                                                            significant number
                                                                                            of small entities.
Solar Electric Power                    221114  Monitoring bird    Likely minimal effects  Bird monitoring in
 Generation.                                     use and                                    some States would
                                                 mortality at                               continue to be
                                                 facilities,                                required under State
                                                 limited use of                             policies. Where not
                                                 deterrent                                  required, monitoring
                                                 systems such as                            costs are likely not
                                                 streamers and                              significant compared
                                                 reflectors.                                to overall project
Wind Electric Power Generation          221115  Following Wind     Likely minimal effects  Following the Wind
                                                 Energy                                     Energy Guidelines
                                                 Guidelines,                                has become industry
                                                 which involve                              best practice and
                                                 conducting risk                            would likely
                                                 assessments for                            continue. In
                                                 siting                                     addition, the
                                                 facilities.                                industry uses these
                                                                                            guidelines to aid in
                                                                                            reducing effects on
                                                                                            other regulated
                                                                                            species like eagles
                                                                                            and threatened and
                                                                                            endangered bats.
Electric Bulk Power                     221121  Following Avian    Likely minimal effects  Industry would likely
 Transmission.                                   Power Line                                 continue to use
                                                 Interaction                                APLIC guidelines to
                                                 Committee                                  reduce outages
                                                 (APLIC)                                    caused by birds and
                                                 guidelines.                                to reduce the take
                                                                                            of eagles, regulated
                                                                                            under the Bald and
                                                                                            Golden Eagle
                                                                                            Protection Act.
Electric Power Distribution...          221122  Following Avian    Likely minimal effects  Industry would likely
                                                 Power Line                                 continue to use
                                                 Interaction                                APLIC guidelines to
                                                 Committee                                  reduce outages
                                                 (APLIC)                                    caused by birds and
                                                 guidelines.                                to reduce the take
                                                                                            of eagles, regulated
                                                                                            under the Bald and
                                                                                            Golden Eagle
                                                                                            Protection Act.
Wireless Telecommunications             517312  Installation of    Likely minimal effects  Industry will likely
 Carriers (except Satellite).                    flashing                                   continue to install
                                                 obstruction                                flashing obstruction
                                                 lighting.                                  lighting to save
                                                                                            energy costs and to
                                                                                            comply with recent
                                                                                            Federal Aviation
                                                                                            Lighting Circular
                                                                                            and Federal

    To improve our analysis of this proposed rule's effects on small 
entities, we encourage the submission of relevant information during 
the public comment period as described above under Regulatory Planning 
and Review, such as additional industry sectors affected, the number of 
small entities affected, and the scale and nature of economic effects.
    As explained above and in the rationale set forth in Regulatory 
Planning and Review, the economic effects on all regulated entities 
will be positive and that this proposed rule is not a major rule under 
SBREFA (5 U.S.C. 804(2)). Moreover, we certify that the proposed rule, 
if promulgated, would not have a significant economic impact on a 
substantial number of small entities.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 

    We expect that this proposed rule will be an Executive Order (E.O.) 
13771 (82 FR 9339, February 3, 2017) deregulatory action.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This proposed rule would not ``significantly or uniquely'' 
affect small government activities. A small government agency plan is 
not required.
    b. This proposed rule would not produce a Federal mandate on local 
or State government or private entities. Therefore, this action is not 
a ``significant regulatory action'' under the Unfunded Mandates Reform 


    In accordance with E.O. 12630, this proposed rule does not contain 
a provision for taking of private property, and would not have 
significant takings implications. A takings implication assessment is 
not required.


    This proposed rule would not interfere with the States' abilities 
to manage themselves or their funds. This rule would not have 
sufficient federalism effects to warrant preparation of a federalism 
summary impact statement under E.O. 13132.

Civil Justice Reform

    In accordance with E.O. 12988, we have reviewed this proposed rule 
and determined that it will not unduly burden the judicial system and 
meets the requirements of sections 3(a) and 3(b)(2) of the Order.

[[Page 5926]]

Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    We are evaluating this proposed regulation in accordance with the 
criteria of the National Environmental Policy Act (NEPA), the 
Department of the Interior regulations on Implementation of the 
National Environmental Policy Act (43 CFR 46.10 through 46.450), and 
the Department of the Interior Manual (516 DM 8). We will complete our 
analysis, in compliance with NEPA, before finalizing this regulation.

Compliance with Endangered Species Act Requirements

    Section 7 of the Endangered Species Act of 1973, as amended (ESA; 
16 U.S.C. 1531-44), requires that ``The Secretary [of the Interior] 
shall review other programs administered by him and utilize such 
programs in furtherance of the purposes of this Act.'' 16 U.S.C. 
1536(a)(1)It further states that ``[e]ach Federal agency shall, in 
consultation with and with the assistance of the Secretary, insure that 
any action authorized, funded, or carried out by such agency . . . is 
not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of [critical] habitat.'' 16 U.S.C. 1536(a)(2) Before the 
Service issues a final rule regarding take of migratory birds, we will 
comply with provisions of the ESA as necessary to ensure that the 
proposed amendments are not likely to jeopardize the continued 
existence of any species designated as endangered or threatened or 
destroy or adversely modify its critical habitat.

Government-to-Government Relationship with Tribes

    In accordance with Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior's manual at 512 DM 2, we are considering the possible 
effects of this proposed rule on federally recognized Indian Tribes. 
The Department of the Interior strives to strengthen its government-to-
government relationship with Indian Tribes through a commitment to 
consultation with Indian Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this proposed rule 
under the criteria in Executive Order 13175 and under the Department's 
tribal consultation policy and have determined that this rule may have 
a substantial direct effect on federally recognized Indian tribes. 
Accordingly, we will initiate government-to-government consultation 
with federally recognized Indian tribes.

Clarity of this Proposed Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Energy Supply, Distribution, or Use (E.O. 13211)

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule is not a 
significant regulatory action under E.O. 13211 and would not 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action. No Statement of Energy 
Effects is required.

List of Subjects in 50 CFR Part 10

    Exports, Fish, Imports, Law enforcement, Plants, Transportation, 

Proposed Regulation Promulgation

    For the reasons described in the preamble, we propose to amend 
subchapter B of chapter 1, title 50 of the Code of Federal Regulations, 
as set forth below:


1. The authority citation for part 10 continues to read as follows:

    Authority: 16 U.S.C. 668a-d, 703-712, 742a-j-l, 1361-1384, 1401-
1407, 1531-1543, 3371-3378; 18 U.S.C. 42; 19 U.S.C. 1202.

2. Add Sec.  10.14 to subpart B to read as follows:

Sec.  10.14  Scope of the Migratory Bird Treaty Act.

    The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703) 
that make it unlawful at any time, by any means or in any manner, to 
pursue, hunt, take, capture, or kill migratory birds, or attempt to 
engage in any of those actions, apply only to actions directed at 
migratory birds, their nests, or their eggs. Injury to or mortality of 
migratory birds that results from, but is not the purpose of, an action 
(i.e., incidental taking or killing) is not prohibited by the Migratory 
Bird Treaty Act.

    Dated: January 22, 2020.
Rob Wallace,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2020-01771 Filed 1-31-20; 8:45 am]