United States: Migratory Bird Treaty Act And The Sword Of Damocles

Elizabeth "Betsy" Lake is a partner in our San Francisco office and Rafe Petersen is a partner in ou Washington, D.C., office


  • A U.S. Department of the Interior (DOI) legal memo has found that the Migratory Bird Treaty Act (MBTA) applies only to purposeful "take" and does not apply to otherwise lawful activities.
  • The memo specifically overturns the Obama Administration DOI Solicitor's Office memo from January 2017 concluding the opposite.
  • The memo indicates the Trump Administration's approach but does not resolve the current court split over liability under the MBTA, and it can easily be reversed (again) by a subsequent administration.

The U.S. Department of the Interior (DOI) Solicitor's Office on Dec. 22, 2017, issued a new legal opinion concluding that that the Migratory Bird Treaty Act (MBTA) applies only to intentional actions (such as hunting and poaching) that kill migratory birds and does not apply to incidental take (accidental deaths from otherwise lawful activities such as energy production). The MBTA is an act that makes it criminally unlawful to "kill" or "take" a migratory bird, nest or egg, except as permitted under regulations. 16 U.S.C. §703. The Trump Administration's opinion withdraws and replaces the Obama Administration's 2017 legal opinion, which concluded the opposite. In so doing, the memo states that the "sword of Damocles" that has been hanging over American businesses and economic productivity has been removed. But has it?

Legal Opinion Summary

The legal opinion, signed by Daniel Jorjani, DOI Principal Deputy Solicitor, goes to great lengths to justify its withdrawal of the Jan. 10, 2017, legal memo by Hilary Tompkins, DOI Solicitor under the Obama Administration. Recognizing the prior administration's position and the split in federal circuit courts on the question of whether the MBTA applies to otherwise lawful activities, the memo delivers a long explanation of the legislative history, purpose and text of the MBTA. It finds that "[n]either the plain language of the statute nor its legislative history support the notion that Congress intended to criminalize, with fines and potential jail time, otherwise lawful conduct that might incidentally result in the taking of one or more birds." In explaining why the prior memo's interpretation was too expansive, the memo notes that the scope of the incidental take liability is virtually unlimited and reliance on prosecutorial discretion to determine who should be criminally prosecuted is fundamentally unfair.

Thus, the memo concludes, the MBTA does not criminalize "incidental take," which is defined as "both takings and/or killings that directly and foreseeably result from, but are not the purpose of, an activity." The result is that oil and gas operators, wind and solar operators, and building developers should be able to go about the business of producing energy and constructing buildings without fear of criminal prosecution for activities that result in harm to listed birds – for now.

Impact of Legal Opinion

While the memo takes a high view of its import, its actual impact may be more limited. Foremost, this is the classic example of a change in interpretation driven solely by a change in administration. Indeed, the next administration would be free to turn around and reverse this opinion – again – without a notice or comment period. Although generally the courts defer to the interpretations of expert agencies concerning their own authorities, the fact that it was not subject to notice and comment and is not a rulemaking means that the opinion will be given less deference by the courts. Given this inherent drawback of providing legal opinions through memorandum that can be revoked or changed by the next Secretary of the Interior, a legislative fix or rule promulgated through notice and comment would create greater regulatory certainty. Moreover, because it is a legal memorandum, it might not be viewed by the Department of Justice as binding. This would place project proponents in the uncomfortable position of getting caught between two agencies. Finally, although the opinion expresses the perspective of this administration, it does not resolve the current split in the federal circuits as to whether the MBTA applies to otherwise lawful activities. Thus, it may be useful in one part of the country but not in circuits where the courts have already reached an opposite conclusion.

Thus, although the memo will provide some much-desired comfort to industry that projects are unlikely to get prosecuted for take under the MBTA during the Trump Administration, it does not resolve the question in the long term. While the MBTA does not allow for a private right of action allowing for suits directly against individuals who "take" species, it does allow for suits against federal agencies. In other words, the sword of Damocles may return. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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