migratory bird treaty act nest removalmigratory bird treaty act nest removal

b. 1, De Adquir. When Congress did attempt to assert a degree of Federal jurisdiction over wild game with the 1913 Weeks-McLean Law, it was met with mixed results in the courts, leaving the question pending before the Supreme Court at the time of the MBTA's enactment. was enacted in 1918 to help fulfill the United States' obligations under the 1916 "Convention between the United States and Great Britain for the protection of Migratory Birds." 39 Stat. Further, the subsequent publication and comment period on the draft EIS was after-the-fact, indicating a decision was already made regardless of the environmental consequences determined in the EIS. 4, 1972, 25 U.S.T. Comment: The analysis under the Regulatory Flexibility Act shows likely minimal economic benefit to all of the affected businesses. This administration's sudden policy change has thrown decades of practice and policy into upheaval for all entities, including industry, Federal, State, local, and international agencies, conservation groups, and more. Table 2Finfish NAICS 14111: Employment Sizes and Payroll1. This EIS was open for public comments, and comments focused on these analyses are addressed within the final EIS. Pursuant to the federal act, it is unlawful to take, possess, buy, sell, purchase, or barter any migratory bird . FWS-HQ-MB-2018-0090. on Foreign Affairs, 64th Cong. We have determined that this rule regarding the take of migratory birds will have no effect on species listed under the provisions of the ESA. [I]nadvertence in this statement refers to the boy's mens rea. As discussed above, collisions with buildings and cars are the second and Start Printed Page 1141third most common human-caused threat to birds, killing an estimated 599 million and 214.5 million birds per year, respectively. Any chicks within those nests would likely be destroyed killing those chicks, but the maintenance workers would not take them in the common law sense. We also note that several Service programs exist that are designed to conserve species that are candidates for ESA listing, such as Candidate Conservation Agreements and the Prelisting Conservation Policy. Response: This rulemaking does not present a false choice between regulatory certainty and implementing the MBTA. Thus, it does not rely on the statutory language quoted by the commenter. The Service determines the relevant language in section 2 to be ambiguous, which is consistent with the views of most Federal courts. Thus, the Service has analyzed the environmental impacts of adopting either opposing interpretation of the MBTA. To wit, the guidelines themselves state, it is not possible to absolve individuals or companies from liability under the MBTA. Fish and Wildlife Service, Threats to Birds: Migratory Birds MortalityQuestions and Answers, available at https://www.fws.gov/birds/bird-enthusiasts/threats-to-birds.php (last updated September 14, 2018). 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. As is the case with the ESA, in the MBTA, [t]he taking prohibition is only part of the regulatory plan . Response: The effects of this rule have been analyzed in the EIS accompanying this rulemaking. 2010) (concluding that under an incidental take interpretation, [t]he actions criminalized by the MBTA may be legion, but they are not vague). 13186 has not to date been revoked, M-Opinion 37050 and this rulemaking directly conflict with that standing presidential directive. The parties to those Conventions may meet to amend and update the provisions of the Conventions, but enactment, amendment, and implementation of domestic laws that implement those Conventions do not require concurrence by the other parties. documents in the last year, by the International Trade Commission By contrast, liability fails to attach to actions that are not directed toward rendering an animal subject to human control. Comment: Multiple commenters suggested that compliance with the MBTA was not a burden to State and local governments and has straightforward and minimal impacts on capital-improvement projects. that I am heartily in sympathy with this legislation. Similar to the earlier Conventions, the provisions of the Japan and Russia Conventions authorized purposeful take for specific activities such as hunting, scientific, educational, and propagation purposes, and protection against injury to persons and property. documents in the last year. We will also continue to work with other Federal agencies and stakeholders to promote conservation measures that reduce incidental take and protect migratory bird habitat, consistent with the Federal statutes we implement to manage, conserve, and protect migratory birds and other wildlife. Response: The Service acknowledges that birds are currently in decline. 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.' 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. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 65-243, at 2 (1918) (letter from Secretary of State Robert Lansing to the President)). documents in the last year, 124 The terms take and kill are informed by the context of the rest of the statute in which they must be read, and by the legislative and historical record of the MBTA and other environmental laws. 1503 & 1507. Under Alternative A, the Service hereby promulgates a regulation that defines the scope of the MBTA take prohibitions to include only actions directed at migratory birds. 703 et seq.) The Service acknowledged in the EIS that this rule may result in incremental declines in bird populations as companies learn they are not required to implement best management practices to decrease incidental take. Because E.O. Without retaining the legal responsibility by individuals and/or companies under the existing MBTA, there would be far less money available for mitigation of preventable environmental damage. As is apparent from the record in this case, the Forest Service must comply with a myriad of statutory and regulatory requirements to authorize even the very modest type of salvage logging operation of a few acres of dead and dying trees at issue in this case. In this rulemaking, the Service describes these various protections, but does not rely on them to address incidental take of migratory birds in the absence of MBTA protection. Response: This proposal does not authorize the taking of migratory birds; it defines the scope for when authorizations under section 703 are necessary and appropriate. documents in the last year, 825 These can be useful The commenters reasoned that Congress could have directed the Service to issue MBTA regulations that achieved the same result as this rulemaking action by limiting the MBTA to direct actions against migratory birds. 2010); United States v. Corbin Farm Serv., 444 F. Supp. Add 10.14 to subpart B to read as follows: The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. The Service proposed to codify the interpretation set forth in Solicitor's Opinion M-37050 and presented reasonable alternatives to that proposal in the associated draft EIS. Whether the Federal Government had any authority to regulate the killing or taking of any wild animal was an open question in 1918. Not all small businesses will be impacted by this rule. Rec. That approach would require congressional action. Source: U.S. Census Bureau, 2012 County Business Patterns. Fish and Wildlife Service. Interagency review limited to Federal agencies occurred prior to issuance of the proposed rule under procedures required by Executive Order Start Printed Page 114512866 and implemented by the Office of Management and Budget. Similarly, in Mahler v. U.S. Forest Serv., 927 F. Supp. Both the underlying M-Opinion and the preamble to this rule analyzed the prior interpretation and explained both why it is incorrect and why it does not provide the same level of certainty or consistency in enforcement. Response: We respectfully disagree that the Service has not justified its current interpretation of the MBTA. No public comments received to estimate costs. Under this approach, it is literally impossible for individuals and companies to know exactly what is required of them under the law when otherwise-lawful activities necessarily result in accidental bird deaths. Id. Accordingly, an interpretation with broad implications for the American public was implicitly adopted without public debate. . Protection may entail maintaining a safe, documents in the last year, 37 To wit, according to the entry for each word in a contemporary dictionary: Thus, one does not passively or accidentally pursue, hunt, or capture. In reaching this result, the Court squarely rejected the argument that the Court's reading of the statute's expansive terms ignore[d] the legislature's purpose in enacting Title VII and that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. Id. The majority of Minnesota's birds are protected by the federal Migratory Bird Treaty Act of 1918 (MBTA), which prohibits the take of birds, their nests, and/or their eggs, whether intentional or unintentional. The commenter stated that this ruling and analysis further undermine the Service's justification for reversing course on many decades of prior policy and practice in implementing the MBTA. 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. Nest removal permits are usually only issued when the particular nest is causing a human health or safety concern or the birds are in immediate danger. The announcement Upon closer examination, these statements are instead consistent with a limited reading of the MBTA. While the MBTA does contemplate the issuance of permits authorizing the taking of wildlife, it requires such permits to be issued by regulation. See 16 U.S.C. If anything, this finding argues that the proposed rule is a solution in search of a problem. The Service's proposal does not even address its actual statutory authority. However, Congress did not do either of those things; instead, it temporarily exempted incidental taking caused by military-readiness activities from the MBTA prohibition and directed the Service to issue MBTA regulations to create a permanent authorization for military-readiness activities. The commenter contended that entities that choose not to implement known measures are purposefully taking migratory birds. 68A-27.003(2)(a) and 68A-16.001, F.A.C., and the Federal Migratory Bird Treaty Act. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and have determined that this rule may have a substantial direct effect on federally recognized Indian Tribes. Due to the biological and behavioral characteristics of some migratory bird species, destruction of their nests entails an elevated risk of violating the MBTA. In accordance with the Unfunded Mandates Reform Act (2 U.S.C. We summarized and addressed substantive comments received from the Government of Canada in Appendix C of the final EIS. Therefore, this action is not a significant regulatory action under the Unfunded Mandates Reform Act. In fact, such partnerships will likely become increasingly important to promote conservation of migratory birds and lead to greater consistency in both conservation and regulation nationwide. Tribal representatives were allowed to ask questions and seek clarifications. These three separate 45-day periods provided sufficient time for the public to address this rulemaking. This rule does not affect the prohibitions under the ESA, and thus species listed under that statute would continue to be covered by all the protections accorded listed species under the ESA. Thus, it is unlikely that the Service's implementation of voluntary measures will result in benefits to birds. A takings implication assessment is not required. Therefore, this rule would not have sufficient federalism effects to warrant preparation of a federalism summary impact statement under E.O. In the draft EIS, we compared the impacts of codifying M-37050 with returning to the prior Opinion's interpretation. 23, 2012). Reading the MBTA to capture incidental takings could potentially transform average Americans into criminals. the official SGML-based PDF version on govinfo.gov, those relying on it for Often, monitoring of industrial projects is not conducted, and when it is, the Service rarely gets reports of the findings. To impose a limit on the activities it could regulate under the MBTA would be to ossify this Start Printed Page 1146broadly written protection into only applying to activities that existed during the decade immediately following its passage. Because the proposed alternative would have established a minimum mens rea of gross negligence before the Service could enforce the statute's misdemeanor provision, it would not be legally defensible. from 35 agencies. 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. Comment: Multiple commenters recommended the Service clarify how the Service will continue to collect project-level data on industrial impacts to birds. Size distribution of oil pits is unknown. Those alternatives analyze the environmental effects of both prohibiting incidental take under the MBTA and excluding incidental take under the MBTA and gave the public opportunity to comment on those effects. It prohibits the "taking" any native birds; "taking" can mean killing a wild bird or possessing parts of a wild bird, including feathers, nests, or eggs. The proposed rulemaking extends that practice to the MBTA. An analysis of the amount of funding available for mitigation of environmental damage, including incidental take of migratory birds, would be largely speculative at this point and not directly relevant to this rulemaking. is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat. 16 U.S.C. This, however, is exactly the mode of statutory construction rebuffed by the Supreme Court in Bostock. 1981), aff'd on other grounds, 460 U.S. 300 (1983). First, in 1918, Congress adopted the MBTA to address the direct and intentional killing of migratory birds; Second, in 1929, Congress adopted the Migratory Bird Conservation Act to more effectively implement the Migratory Bird Treaty by protecting certain migratory bird habitats. Federal Register. There is simply no question that the Service's history of interpretation (until 2017) of the MBTA as applying to incidental take has been the bulwark protecting tens of millions of birds from unnecessary deaths. Comment: Multiple commenters presented arguments that the Service has misquoted the provisions of the MBTA and that the proposal does not address the statutory authority in section 3 to authorize take of migratory birds that would otherwise violate the statute, which the commenters contend is the source of the Secretary's authority to implement the statute. See United States v. Moon Lake Electrical Ass'n, 45 F. Supp. documents in the last year, 1416 Accordingly, the guidelines do not provide enforceable legal protections for people and businesses who abide by their terms. For example, the removal of active nests when the purpose of the underlying activity is not to harm birds but related to another activity, such as construction or cleaning, has created confusion and a major loophole. 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. Federal Register issue. ., which covers all stages of the process by which protected wildlife is reduced to man's dominion and made the object of profit, and, as such, is a term of art deeply embedded in the statutory and common law concerning wildlife that describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals). Sweet Home, 515 U.S. at 718 (Scalia, J., dissenting). 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