many birds flying in the sky

Migratory Bird Treaty Act

The Migra­to­ry Bird Treaty Act (MBTA) was enact­ed in 1918 as one of the country’s first envi­ron­men­tal pro­tec­tion statutes. The MBTA pro­tects more than 1,000 bird species and pro­hibits, unless autho­rized by a per­mit, by any means or in any man­ner” the pur­su­ing, hunt­ing, tak­ing, cap­tur­ing, or killing of any migra­to­ry birds.

For decades, admin­is­tra­tions of both par­ties inter­pret­ed the take” pro­vi­sion as enabling the Fish and Wildlife Ser­vice (FWS) to iden­ti­fy rea­son­able and effec­tive mea­sures that the oil, gas, tim­ber, min­ing, elec­tri­cal util­i­ty and chem­i­cal indus­tries can under­take to avoid inci­den­tal take and harm to migra­to­ry birds. Activ­i­ties by these indus­tries are not under­tak­en with the intent to take or harm birds, but nev­er­the­less the activ­i­ties of these indus­tries kill more than 100 mil­lion birds annu­al­ly.

Attor­neys gen­er­al have used the full set of tools at their dis­pos­al to oppose the Trump administration’s efforts to reverse the long-stand­ing inter­pre­ta­tion and under­stand­ing of the MBTA’s take” pro­vi­sion and to pro­tect migra­to­ry birds. Attor­neys gen­er­al have led this fight in the courts, through the reg­u­la­to­ry process and by tak­ing state-spe­cif­ic actions to pro­tect migra­to­ry birds. 

2017-2021

  • Decem­ber 2017

    In Decem­ber 2017, the Act­ing Solic­i­tor of the Depart­ment of the Inte­ri­or released a Solicitor’s Opin­ion that depart­ed from decades of reg­u­la­to­ry prece­dent by con­clud­ing that the MBTA does not pro­hib­it the inci­den­tal take of migra­to­ry birds. An April 2018 guid­ance doc­u­ment on the Opin­ion indi­cat­ed that FWS would no longer be able to assert the author­i­ty to reg­u­late inci­den­tal take activ­i­ties, depriv­ing the agency of lever­age it has pre­vi­ous­ly used to work with indus­tries to iden­ti­fy ways to avoid unin­ten­tion­al­ly harm­ing migra­to­ry birds.

  • April 2018

    An April 2018 guid­ance doc­u­ment on the Opin­ion indi­cat­ed that FWS would no longer be able to assert the author­i­ty to reg­u­late inci­den­tal take activ­i­ties, depriv­ing the agency of lever­age it has pre­vi­ous­ly used to work with indus­tries to iden­ti­fy ways to avoid unin­ten­tion­al­ly harm­ing migra­to­ry birds.

Attor­neys gen­er­al have used the full set of tools at their dis­pos­al to oppose the Trump administration’s efforts to reverse the long-stand­ing inter­pre­ta­tion and under­stand­ing of the MBTA’s​“take” pro­vi­sion and to pro­tect migra­to­ry birds. Attor­neys gen­er­al have led this fight in the courts, through the reg­u­la­to­ry process and by tak­ing state-spe­­cif­ic actions to pro­tect migra­to­ry birds.

Oppos­ing the Rever­sal through Litigation

2017-2021

  • Sep­tem­ber 2018

    In Sep­tem­ber 2018, New York Attor­ney Gen­er­al Bar­bara Under­wood led a coali­tion of eight attor­neys gen­er­al in bring­ing a suit in fed­er­al dis­trict court against the Depart­ment of the Inte­ri­or, the Fish and Wildlife Ser­vice and the Act­ing Solic­i­tor over the opin­ion. The suit asks the court to vacate the opin­ion as its inter­pre­ta­tion of the MBTA is incon­sis­tent with the statute’s intent to pro­tect migra­to­ry birds and vio­lates the Admin­is­tra­tive Pro­ce­dure Act (APA).

  • July 2019

    In July 2019, a judge in a fed­er­al dis­trict court in New York sided with the attor­neys gen­er­al in declin­ing to dis­miss the states’ Sep­tem­ber 2018 law­suit chal­leng­ing the Decem­ber 2017 opin­ion that con­clud­ed that the MBTA does not pro­hib­it the inci­den­tal take of migra­to­ry birds. The judge found that the states have stand­ing to seek to have the opin­ion vacat­ed and that the opin­ion is a final agency action sub­ject to judi­cial review.

  • Jan­u­ary 2020

    In Jan­u­ary 2020, New York Attor­ney Gen­er­al Leti­tia James led eight oth­er states in fil­ing a motion for sum­ma­ry judg­ment, call­ing on the court to vacate the Solicitor’s Opin­ion. The states not­ed that the opin­ion is arbi­trary and capri­cious in vio­la­tion of the APA and con­trary to law, as the text, his­to­ry and pur­pose of the MBTA are clear that the statute pro­hibits the inci­den­tal take of migra­to­ry birds.

  • August 2020

    In August 2020, the judge in the fed­er­al dis­trict court in New York grant­ed the motion for sum­ma­ry judg­ment from the attor­neys gen­er­al. The court held that the Solicitor’s Opin­ion is con­trary to the law, vio­lat­ing the clear lan­guage of the MBTA and the pur­pose of the statute to pro­tect migra­to­ry bird pop­u­la­tions. The court chose the pre­ferred rem­e­dy of the attor­neys gen­er­al in vacat­ing the Solicitor’s Opinion.

  • Octo­ber 2020

    In Octo­ber 2020, the Depart­ment of the Inte­ri­or, the Fish and Wildlife Ser­vice and Solic­i­tor Jor­jani filed with the New York fed­er­al dis­trict court a notice of appeal to the U.S. Court of Appeals for the Sec­ond Circuit.

Oppos­ing the Reg­u­la­to­ry Reversal

2017-2021

  • Feb­ru­ary 2020

    In Feb­ru­ary 2020, the FWS released a pro­posed rule that would cod­i­fy the 2017 Solicitor’s Opin­ion. If final­ized, the rule would reverse decades of reg­u­la­to­ry prece­dent and shield com­pa­nies and oth­ers that unin­ten­tion­al­ly kill migra­to­ry birds from lia­bil­i­ty under the MBTA

  • March 2020

    In March 2020, New York Attor­ney Gen­er­al James led a coali­tion of eleven attor­neys gen­er­al in fil­ing com­ments with the FWS opposed to the pro­posed rule to cod­i­fy the 2017 Solicitor’s Opin­ion. The attor­neys gen­er­al not­ed that the pro­pos­al vio­lates the MBTA and the APA as it is con­trary to the take” pro­vi­sion in the MBTA, which pro­hibits the inten­tion­al and unin­ten­tion­al tak­ing or killing of migra­to­ry birds. The com­ments also high­light­ed that the pro­posed rule is incon­sis­tent with the MBTA’s leg­isla­tive his­to­ry and clear pur­pose of pro­tect­ing migra­to­ry birds and would harm the states’ sov­er­eign, qua­si-sov­er­eign, and pro­pri­etary inter­ests in pro­tect­ing migra­to­ry birds for the ben­e­fit of their cit­i­zens and the nat­ur­al resources with­in their boundaries.

  • May 2020

    In May 2020, the FWS pub­lished its draft Envi­ron­men­tal Impact State­ment (DEIS) for the Feb­ru­ary pro­posed rule lim­it­ing the scope of the MBTA. The DEIS ana­lyzed the like­ly envi­ron­men­tal impacts of three sce­nar­ios: (1) a No Action Alter­na­tive, which would retain the FWS’s 2017 rein­ter­pre­ta­tion of the MBTA with­out imple­ment­ing the pro­posed rule; (2) Alter­na­tive A, the FWS’s pre­ferred alter­na­tive, which would imple­ment the pro­posed rule to fur­ther cod­i­fy the rein­ter­pre­ta­tion of the MBTA; and (3) Alter­na­tive B, which would rein­state the pre­vi­ous inter­pre­ta­tion of the Act.

  • July 2020

    In July 2020, a coali­tion of 10 attor­neys gen­er­al led by Attor­ney Gen­er­al James filed com­ments crit­i­ciz­ing the DEIS. In their com­ments, the coali­tion point­ed out that while the DEIS suf­fers from legal defi­cien­cies and its analy­sis is insuf­fi­cient, it sup­ports the states’ asser­tion that Alter­na­tive B is con­sis­tent with the MBTA and fur­thers the MBTA’s objec­tive and the states’ inter­ests in pro­tect­ing migra­to­ry birds. The coali­tion urged the FWS to adopt Alter­na­tive B and pro­hib­it the inci­den­tal take of migra­to­ry birds because it is the only legal­ly sound inter­pre­ta­tion of the MBTA and, as the DEIS acknowl­edges, it is the only alter­na­tive that would increase the num­ber of enti­ties imple­ment­ing best prac­tices for avoid­ing bird deaths and decrease mor­tal­i­ty of migra­to­ry birds.

  • Novem­ber 2020

    In Novem­ber 2020, the FWS pub­lished the final Envi­ron­men­tal Impact State­ment (FEIS) as a pre­req­ui­site to final­iz­ing the Feb­ru­ary 2020 pro­posed rule. The FEIS found that more birds will die as a result of its pro­posed changes to MBTA.

  • Jan­u­ary 2021

    In Jan­u­ary 2021, the out­go­ing Trump admin­is­tra­tion final­ized the rule, adopt­ing the Solic­i­tor Opinion’s find­ing that the MBTA does not pro­hib­it the inci­den­tal take of migra­to­ry birds. Before the end of Pres­i­dent Trump’s term, New York Attor­ney Gen­er­al James led a coali­tion of 11 attor­neys gen­er­al in fil­ing a law­suit in fed­er­al dis­trict court chal­leng­ing the legal­i­ty of the Jan­u­ary 2021 rule. The law­suit requests that the court vacate the Jan­u­ary 2021 rule as arbi­trary and capri­cious in vio­la­tion of the APA and is con­trary to the text and pur­pose of the MBTA and Sec­ond Cir­cuit precedent.

State-Lev­el Action to Oppose the Reversal

2017-2021

  • Novem­ber 2018

    In Novem­ber 2018, Cal­i­for­nia Attor­ney Gen­er­al Xavier Becer­ra released a legal advi­so­ry on the MBTA and California’s pro­tec­tions for migra­to­ry birds. The legal advi­so­ry states that despite FWS’s rein­ter­pre­ta­tion of the MBTA, Cal­i­for­nia law con­tin­ues to pro­hib­it the inci­den­tal take of migra­to­ry birds.