Starting December 3, 2021, the U.S. Fish and Wildlife Service (FWS) will revert to interpreting incidental take under the Migratory Bird Treaty Act (MBTA) as it did prior to the Trump Administration’s Jorjani Opinion. The Jorjani Opinion concluded that prohibition of incidental take applied only to direct and purposeful actions that resulted in loss of protected migratory birds, eggs, or their nests. On January 7, 2021, in the midnight hour of the Trump Administration, the FWS published a final rule defining the scope of the MBTA as interpreted in the Jorjani Opinion.
The FWS under the Biden Administration has revoked the January 7 final rule with the intent “to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017.” The FWS has also published a Director’s Order clarifying its current enforcement position.
According to the Director’s Order, the FWS’s intention “through this policy is to apply a transparent and consistent approach to managing and prioritizing our enforcement of incidental take, taking into account the case law applicable in a given jurisdiction and the facts and circumstances of each case.”
Therefore, it is important to understand the current scope of MBTA prohibitions will depend on your project’s location. For instance, the Courts of Appeals for the Fifth, Eighth, and Ninth federal district circuits have ruled that the MBTA does not prohibit incidental take; these circuits cover many of the western and central states.
The saga doesn’t end here! Because of the legal discrepancy among the circuit courts, the FWS intends to introduce new policies. These new policies may codify an interpretation of the MBTA that prohibits incidental take and a regulatory framework for the issuance of permits to authorize incidental take.
For updates or additional information, please reach out to your primary SWCA contact or one of our regional MBTA leads: aaurora [at] swca [dot] com (subject: MBTA%20Revocation%20Rule) (Amanda Aurora) (National), dwfaulkner [at] swca [dot] com (subject: MBTA%20Revocation%20Rule) (Doug Faulkner) (Rockies), pkroberts [at] swca [dot] com (subject: MBTA%20Revocation%20Rule) (Pauline Roberts) (West), or psunby [at] swca [dot] com (subject: MBTA%20Revocation%20Rule) (Paul Sunby) (South).