All,
Exciting news! You all have probably heard that the M-opinion that removed
“Incidental Take” is in the process of being rescinded. The USFWS will be
working to create a proposed rule to rescind the current rule and work with the
bird conservation community to develop common sense standards.
Take care,
David
From: Judith Scarl <jscarl@xxxxxxxxxxxxxxxx>
Sent: Monday, March 8, 2021 12:52 PM
Subject: [EXTERNAL] MBTA M-opinion rescinded
*** This is an EXTERNAL email. Please exercise caution. DO NOT open attachments
or click links from unknown senders or unexpected email - STS-Security. ***
Hello, bird conservation community,
We’ll have lots of exciting news to discuss tomorrow during BCCI- including the
erasure of the 2017 M-opinion that indicated that the MBTA only covered
intentional (rather than incidental) killing of birds. See below. This is good
news- the restriction of the MBTA to only cover intentional take was very
unpopular among states, environmental groups, and our treaty partners.
Tune in to BCCI tomorrow to learn more!
Judith
***********************************
Dr. Judith Scarl
Coordinator, North American Bird Conservation Initiative
http://www.nabci-us.org/<https://urldefense.com/v3/__http:/www.nabci-us.org/__;!!PRtDf9A!7eGb-zRbBisXl4oLdTGfebeSaRcrQhVRUEAiousR2fAbyCWYJ2zbz6460XdzAafEvA$>
Bird Conservation Program Manager, Association of Fish and Wildlife Agencies
1100 First Street NE, Suite 825, Washington, DC 20002
(202) 838-3475
www.fishwildlife.org<https://urldefense.com/v3/__http:/www.fishwildlife.org/__;!!PRtDf9A!7eGb-zRbBisXl4oLdTGfebeSaRcrQhVRUEAiousR2fAbyCWYJ2zbz6460XenDVjeoQ$>
***********************************
From: jscarl <email_this@xxxxxxxxxx<mailto:email_this@xxxxxxxxxx>>
Sent: Monday, March 8, 2021 1:48 PM
To: Judith Scarl <jscarl@xxxxxxxxxxxxxxxx<mailto:jscarl@xxxxxxxxxxxxxxxx>>
Subject: From Greenwire -- wildlife: Interior grounds Trump-era migratory bird
legal restrictions
Interior grounds Trump-era migratory bird legal restrictions
This Greenwire story was sent to you by:
jscarl@xxxxxxxxxxxxxxxx<mailto:jscarl@xxxxxxxxxxxxxxxx>
[Greenwire]<https://urldefense.com/v3/__https:/www.eenews.net/gw__;!!PRtDf9A!7eGb-zRbBisXl4oLdTGfebeSaRcrQhVRUEAiousR2fAbyCWYJ2zbz6460XdUPF9eoA$>
AN E&E NEWS PUBLICATION
WILDLIFE
Interior grounds Trump-era migratory bird legal restrictions
Michael
Doyle<https://urldefense.com/v3/__https:/www.eenews.net/staff/Michael_Doyle__;!!PRtDf9A!7eGb-zRbBisXl4oLdTGfebeSaRcrQhVRUEAiousR2fAbyCWYJ2zbz6460XdExtHlFw$>,
E&E News reporter
Published: Monday, March 8, 2021
[Trumpeter swans on Seedskadee National Wildlife Refuge. Photo credit: USFWS
Mountain-Prairie/Flickr]
Trumpeter swans on Seedskadee National Wildlife Refuge. USFWS
Mountain-Prairie/Flickr
The Interior Department today formally erased a controversial Trump
administration legal opinion that concluded the Migratory Bird Treaty Act
covered only intentional killing or injuring of birds.
In a significant part of a multistep restoration of migratory bird protections,
Interior rescinded the prior solicitor's 2017 opinion restricting the law's
reach.
"The reasoning and basis behind that M-Opinion were soundly rejected in federal
court," the department said in a statement, adding that it "overturned decades
of bipartisan and international consensus and allowed industry to kill birds
with impunity."
Interior said it will issue a proposed rule to revoke a corresponding Trump
administration rule, based on the now-rescinded solicitor's opinion, that
limited bird protections.
"The Department will also reconsider its interpretation of the MBTA to develop
common sense standards that can protect migratory birds and provide certainty
to industry," Interior said.
The Justice Department had previously advised the 2nd U.S. Circuit Court of
Appeals that it was assessing the December 2017 legal opinion that justified
cutting bird protections
Greenwire<https://urldefense.com/v3/__https:/www.eenews.net/greenwire/stories/1063723803__;!!PRtDf9A!7eGb-zRbBisXl4oLdTGfebeSaRcrQhVRUEAiousR2fAbyCWYJ2zbz6460Xcgu9ScpQ$>,
Jan. 28).
The 2017 opinion authored by Daniel Jorjani, who served as Interior's
solicitor, reversed a more expansive Obama administration interpretation that
the Migratory Bird Treaty Act covered "incidental take."
"Interpreting the MBTA to apply to incidental or accidental actions hangs the
sword of Damocles over a host of otherwise lawful and productive actions,
threatening up to six months in jail and a $15,000 penalty for each and every
bird injured or killed," Jorjani's opinion stated.
In 1998, for instance, the Moon Lake Electric Association Inc. in Colorado was
charged with taking 12 golden eagles and other birds that had perched on power
poles. In refusing to dismiss the charges, the trial judge reasoned that "the
MBTA does not seem overly concerned with how captivity, injury, or death
occurs."
Other courts, though, have interpreted "take" as being limited to hunting and
other willful acts.
Environmental groups sued to challenge Jorjani's opinion, as did eight states.
Judge Valerie Caproni of the U.S. District Court for the Southern District of
New York last year struck down Jorjani's opinion that removed penalties for
activities or hazards, such as oil pits or power-line electrocutions, that
result in the accidental taking of a migratory bird.
"It is not only a sin to kill a mockingbird, it is also a crime," Caproni
wrote, citing the 1960 novel by Harper Lee. "That has been the letter of the
law for the past century.
"But if the Department of the Interior has its way," the Obama appointee added,
"many mockingbirds and other migratory birds that delight people and support
ecosystems throughout the country will be killed without legal consequence."
The Trump administration announced it would appeal last October, but the Biden
administration subsequently dropped the appeal
Greenwire<https://urldefense.com/v3/__https:/www.eenews.net/greenwire/stories/1063715939__;!!PRtDf9A!7eGb-zRbBisXl4oLdTGfebeSaRcrQhVRUEAiousR2fAbyCWYJ2zbz6460XddkoIEpg$>,
Oct. 9, 2020).
"The Biden administration is doing the right thing by refusing to defend the
prior administration's illegal and ecologically disastrous interpretation of
the Migratory Bird Treaty Act, one of the nation's bedrock conservation laws,"
said Eric Glitzenstein, director of litigation at the Center for Biological
Diversity.
The Fish and Wildlife Service published a final rule in January that limited
the 1918 bird protection law to apply only to intentional killings. It
essentially sought to entrench Jorjani's legal opinion as a formal regulation.
"This rule simply reaffirms the original meaning and intent of the Migratory
Bird Treaty Act by making it clear that the U.S. Fish and Wildlife Service will
not prosecute landowners, industry and other individuals for accidentally
killing a migratory bird," former Interior Secretary David Bernhardt said at
the time in a statement.
FWS's environmental impact statement predicted that "negative impacts on
migratory birds are expected to increase over time as more entities react to
the certainty that incidental take is not prohibited."
But as a benefit, the agency said reducing or eliminating actions to avoid
accidental killing of migratory birds as a result of the new rule would reduce
project expenses.
FWS delayed until today the Trump administration's last-minute Migratory Bird
Treaty Act rule that restricted the law's coverage to intentional actions. The
agency will soon launch the potentially lengthy process to rewrite the rule.
"Millions of birds were at risk of unnecessary death from a Trump-era rule, but
the Biden administration has made a better choice," said Renee Stone, senior
vice president for conservation programs and general counsel at Defenders of
Wildlife. "We look forward to working with the Biden administration to protect
the 100-year-old Migratory Bird Treaty Act and America's migratory birds."
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