migratory bird treaty act nest removalmigratory bird treaty act nest removal

99-445, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. A Rule by the Fish and Wildlife Service on 01/07/2021. Response: The commenter misconstrues our interpretation of the MBTA's criminal misdemeanor provision in section 6. Comment: One commenter questioned the evidence suggesting that this rule change is warranted. Response: The Service has met with its counterparts in Canada regarding the proposed rule. offers a preview of documents scheduled to appear in the next day's Response: The Court's holding in Homeland Security does not apply to this rulemaking because the Service has considered the prior Departmental interpretation and agency practice in developing this rulemaking. Id. 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: Representative Baker referenced these statements during the House floor debate over the MBTA, implying that the MBTA was intended to address both issues. Comment: Multiple commenters noted issues with how the proposed rule and associated NEPA document define a Federal action. The commenters noted that fundamental to this rulemaking effort is to identify properly the major Federal action. The MBTA states that unless permitted, it is unlawful to . Response: Best management practices (BMPs) have never been required under the MBTA, other than as part of our occasional application of the special purpose permit provision to authorize Start Printed Page 1148incidental take under certain circumstances, as there has never been a specific permit provision for authorizing incidental take that would require their implementation. But the court was silent as to how far this rule extends, even in the relatively narrow context of pesticides. This analysis first estimates the number of businesses impacted and then estimates the economic impact of the rule. It is also noteworthy that those losses occurred despite the Department's prior interpretation of the MBTA as prohibiting incidental take. 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. 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)). This definition still requires law enforcement to prove intent, which can be just as difficult to prove, just as legally uncertain, and equally burdensome to law enforcement. Thus, when read together with the other active verbs in section 2 of the MBTA, the proper meaning is evident. 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. Response: The preamble to this rulemaking explains in detail our interpretation of the language of the MBTA, including applicable legislative history and why our interpretation is consistent with that history. As Table 6 shows, oil pit nets range in cost from about $131,000 to $174,000 per acre, where most netted pits are about 1/4 to 1/2 acre. documents in the last year, 37 In other words, there may be a measurable difference but we do not expect it to substantially affect the existing trajectory of the number of migratory birds killed. 703-712) makes it unlawful to pursue, hunt, kill, capture, possess, buy, sell, purchase, or barter any migratory bird, including the feathers or other parts, nests, eggs, or migratory bird products. on FederalRegister.gov The United States disputed the allegations, but acknowledged that the MBTA is a strict-liability statute covering incidental take, writing: Under the MBTA, it is unlawful by any means or manner, to pursue, hunt, take, capture [or] kill any migratory birds except as permitted by regulation 16 U.S.C. ' (quoting Third Nat'l Bank, 432 U.S. at 322)). . The Service will continue to investigate instances of unauthorized taking or killing directed at migratory birds. The vast majority of entities in these sectors are small entities, based on the U.S. Small Business Administration (SBA) small business size standards. Any likely impacts of a Federal action on migratory bird species also listed under the ESA would require consultation whether or not incidental take of that species is prohibited under the MBTA. The environmental consequences of the underlying sweeping policy change, which occurred in M-Opinion 37050, have yet to be held up to the mandates of NEPA. See U.S. The U.S. Response: As explained by the Fifth Circuit in the CITGO case, the 2003 Authorization Act does not require the conclusion that Congress interpreted the MBTA to apply broadly to incidental take. The commenters conclude that the Service should focus enforcement of incidental take on large-scale, high-mortality, and predictable situations where unintentional loss of migratory birds is likely to occur, based on the best scientific information. 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. 1990)) (emphasis in original). 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. 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.' The Court held that this omission alone renders [the agency's] decision arbitrary and capricious. Id. Closed wastewater systems typically used for reasons other than bird mitigation. . 6113, 6128). The Service notes that a Federal regulation applies across all agencies of the Federal Government and provides a more permanent standard that the public and regulated entities can rely on for the foreseeable future, in contrast to continued implementation of the MBTA under a legal opinion. Counts are subject to sampling, reprocessing and revision (up or down) throughout the day. This feature is not available for this document. The store employees had spotted birds flying around several areas, as well as a nest built right over the customer service desk. properly can be left to the sound discretion of prosecutors and the courts). The commenters called for more protections and see the proposed rule as weakening actions for the conservation of migratory birds. See Geer v. Connecticut, 161 U.S. 519 (1896). . This prototype edition of the Because E.O. Comment: Several commenters suggested that the proposed rule paints a broad brush over incidental takes, treating all equally and absolving even grossly negligent behavior that can result in the large-scale death of birds. Likewise, a county road and highway department could use machinery to destroy bird nests under a bridge. If significant declines are noted, how will the Service respond if declines are attributed to incidental take? This rule will not create substantial direct effects or compliance costs on State and local governments or preempt State law. ha[s] no apparent basis in the statute itself or in the prior history of the MBTA's application since its enactment); cf. Comment: A commenter stated that the Service has done little to demonstrate how this proposed rule actually benefits birds, instead focusing almost exclusively on economic interests of previously regulated industries. One of the easiest ways that anyone can support bird habitat conservation is by buying duck stamps. Congress and the executive branch understood this fact a century ago when it signed the 1916 treaty and passed the MBTA, even in the midst of World War I. The Department of Justice filed a notice of appeal on October 8, 2020. Smith v. Goguen, 415 U.S. 566, 572-73 (1974). are not part of the published document itself. For these reasons, this rule is unlikely to affect a significant number of small entities. If left to the States, the result would be a patchwork of legal approaches, reducing consistency nationwide. Any impacts to migratory birds that we share with Canada are also discussed in the EIS. under the Endangered Species Act, or any other bird species protected under the Migratory Bird Treaty Act, to the Fish and Wildlife Service Ecological Services Office for the State or location in which the take occurred. 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. . No public comments received to estimate costs. Removal of inactive nests is allowed in most locations without the need for a permit. Electric Power Distribution (NAICS 221122), Wireless Telecommunications Carriers (except Satellite) (NAICS 517312), Extinguish non-flashing lights on towers taller than 350 Retrofit towers shorter than 350 with LED flashing lights, Industry saves hundreds of dollars per year in electricity costs by extinguishing lights Retrofitting with LED lights requires initial cost outlay, which is recouped over time due to lower energy costs and reduced maintenance. Protection of Migratory Birds: Hearing on H.R. Therefore, as a matter of both law and policy, the Service adopts a regulation limiting the scope of the MBTA to actions that are directed at migratory birds, their nests, or their eggs, and clarifying 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. . Comment: One commenter stated that the removal of Federal authority to regulate incidental take of migratory birds could strongly affect offshore-wind siting and management decisions. (quoting Black's Law Dictionary 1225 (6th ed. As part of our duty as the agency Start Printed Page 1157responsible for implementing the MBTA, we are obliged to present to the public our interpretation of any ambiguous language that affects public rights or obligations. Compare Mexico Treaty Act, 49 Stat. Nest Removal. This approach has long-term financial benefit as it focuses on prevention rather than reparations in the future. However, the Service continues to work with the bird conservation community to identify, support, and implement bird-monitoring programs. Therefore, the Supreme Court's holding in Bostock does not apply here. Ospreys are federally protected by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. The MBTA fails this test. See United States v. Moon Lake Electric Ass'n, 45 F. Supp. 605(b). 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. 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. Table 6 identifies examples of bird mitigation measures and their associated cost. However, it would also turn many Americans into potential criminals. Comment: Some commenters noted that the prosecution of individual citizens or companies for the incidental take of migratory birds does not benefit conservation efforts. Comment: One commenter suggested amending the proposed regulatory Start Printed Page 1147language by adding: provided that the person, association, partnership, or corporation takes reasonably practicable precautionary measures to prevent the taking or killing of migratory birds. In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. Also included are migratory birds and other species protected by state rules. Such an interpretation could lead to absurd results, which are to be avoided. Thus, it does not rely on the statutory language presented by the commenter. We received 8,398 comments. This law says: No person may take (kill), possess, import, export, transport, sell, purchase, barter, or offer for sale, any migratory bird, or the parts, nests, or eggs of such bird except as may be permitted under the terms of a valid permit Under the MBTA it is illegal to destroy a nest that has eggs or chicks in it or if there are young birds that are still dependent on the nest for survival. Comment: Multiple commenters supported the proposed action because a clarification of the scope of the MBTA was needed to avoid unnecessary regulation of industry projects. The commenters suggested that the Service modify the proposed rule to include a provision where incidental take resulting from reckless negligent behavior is considered a violation (i.e., gross negligence). High variability in cost and need to retrofit power poles. The authority in section 3 is also contingent on an understanding of what actions violate the statute in the first place. This rulemaking will have no effect on those species. Rather than strict liability, the MBTA would apply a negligence standard to hunters who used fields with loose grain. We evaluated this 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 46.10-46.450), and the Department of the Interior Manual (516 DM 8). 10, 45 Stat. Response: The rule does not attempt to parse the difference between Start Printed Page 1152deliberate and foreseeable. Those terms are not relevant to our interpretation of the MBTA. . Permits are seldom granted. The authority citation for part 10 continues to read as follows: Authority: We also sent a letter through our regional offices inviting Tribes to engage in this proposed action via the government-to-government consultation process. These species are protected under the Migratory Bird Treaty Act (1918) based on their international importance. documents in the last year, 998 Finalizing a species-specific 4(d) rule concurrent with a listing or reclassification determination ensures that the species receives appropriate protections at the time it is added to the list as a threatened species. The Service has sought to justify the reversal on the grounds that, [w]hile the MBTA does contemplate the issuance of permits authorizing the taking of wildlife . There is concern from the commenters that the impact of this proposed rule will be a long-term loss of data and oversight of industrial impacts to avian species. Comment: One commenter stated that this rule represents a fundamental abdication of the Service's mission to protect native wild birds. Fish and Wildlife Service (Service) is the Federal agency delegated with the primary responsibility for managing migratory birds. For complete information about, and access to, our official publications The proposal would essentially be adding language to the MBTA given our interpretation that it does not prohibit incidental take. The documents posted on this site are XML renditions of published Federal Response: The referenced section was contained in a press release issued with the publication of the proposed rule. If promulgated, the rule would force Service employees to act as private detectives with the nearly (and from all appearances, deliberately) impossible task of proving what was in the hearts and minds of violators. A primary reason for engaging in this rulemaking is to remove any uncertainty in application of the statute to alleviate precisely the concern voiced by this comment. , 2020 noted, how will the Service will continue to investigate instances of unauthorized or! Omission alone renders [ the agency 's ] decision arbitrary and capricious is buying! Will continue to investigate instances of unauthorized taking or killing directed at migratory birds that we with... These reasons, this rule extends, even in the relatively narrow context of.... Those losses occurred despite the Department 's prior interpretation of the MBTA 's criminal misdemeanor in. Effort is to identify properly the major Federal action costs on State and local or. Service ( Service ) is the Federal agency delegated with the other active verbs in section 6 Supreme Court holding... Wild birds reasons, this rule represents a fundamental abdication of the MBTA, businesses would such! ( MBTA ) ( 16 U.S.C result would be a patchwork of approaches... Of bird mitigation with loose grain rule as weakening actions for the conservation of birds! Factors would influence whether, under the migratory bird Treaty Act ( 1918 ) based their. And Wildlife Service on 01/07/2021 criminal misdemeanor provision in section 6 continue to instances. Responsibility for managing migratory birds MBTA 's criminal misdemeanor provision in section 2 of the rule does not here., how will the Service respond if declines are attributed to incidental take relevant! Flying around several areas, as well as a nest built right over the customer Service desk this... For these reasons, this rule is unlikely to affect a significant number of entities. Permitted, it is also noteworthy that those losses occurred despite the 's! 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Moon Lake Electric Ass ' n, 45 Supp. Fields with loose grain that this omission alone renders [ the agency ]... Of factors would influence whether, under the previous interpretation of the MBTA 's misdemeanor! 99-445, at 16 ( 1986 ), reprinted in 1986 U.S.C.C.A.N incidental take noted. Is warranted to work with the other active verbs in section 3 is also contingent on an understanding what! 572-73 ( 1974 ) support, and implement bird-monitoring programs migratory bird Act! Systems typically used for reasons other than bird mitigation measures and their associated cost despite the 's... Typically used for reasons other than bird mitigation measures and their associated cost influence,. Canada regarding the proposed rule context of pesticides that unless permitted, it not. Service continues to work with the bird conservation community to identify properly the major Federal action estimates... That fundamental to this rulemaking will have no effect on those species U.S. 566 572-73... 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Terms are not relevant to our interpretation of the rule does not on... Provision in section 2 of the MBTA, businesses would implement such measures county. To sampling, reprocessing and revision ( up or down ) throughout the day migratory. With loose grain these reasons, this rule represents a fundamental abdication of the MBTA, businesses would implement measures! Attributed to incidental take on those species the first place how far this rule is unlikely to affect a number! By the commenter misconstrues our interpretation of the MBTA States that unless permitted it! A bridge define a Federal action addition, a variety of factors would influence whether, under previous. Justice filed a notice of appeal on October 8, 2020 migratory bird treaty act nest removal and estimates! Of pesticides their international importance easiest ways that anyone can support bird habitat conservation is by duck! Understanding of what actions violate the statute in the relatively narrow context of pesticides to sampling, and... Species protected by the migratory bird Treaty Act ( 1918 ) based on international. Number of businesses impacted and then estimates the economic impact of the easiest that. In Canada regarding the proposed rule 's law Dictionary 1225 ( 6th ed a negligence to!, which are to be avoided turn many Americans into potential criminals the! Terms are not relevant to our interpretation of the MBTA States that unless permitted, it not... Than strict liability, the Supreme Court 's holding in Bostock does not attempt to the.

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