The federal Migratory Bird Treaty Act (MBTA) of 1918, as amended, is a strict liability statute, making it “unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird,” punishable by a $15,000 fine and 6 months imprisonment. There has long been a dispute –and splits in federal courts – as to whether the prohibition again “killing” or “taking” a migratory bird includes actions that are not directed at the bird, but accidentally result in the bird’s injury or death, such as bird deaths that result from bird use of an open process water pond at a chemical plant, electrocution by power lines, or collisions with communication towers.
The Trump Administration has now weighed in on this topic, reversing the Obama Administration’s position. On December 22, 2017, the Deputy Solicitor, acting for the Solicitor of the Department of the Interior, issued a legal opinion, M-37050, concluding that, in light of further analysis of the text, history and purpose of the MBTA as well as case law, the MBTA cannot be properly interpreted as extending to incidental takes, but rather can be applied “only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.” This is based largely on the asserted extreme overbreadth of the MBTA, because, if not limited to intentional takes, it could, according to some courts and this Opinion, be applied to such everyday activities as vehicle collisions or “death by housecat.” To several courts and to the Solicitor, prosecutorial discretion cannot cure the overbreadth. This opinion delves heavily into the history of the adoption of the MBTA and its subsequent amendments in reaching its conclusions. This very narrow interpretation permanently withdraws and replaces an Obama-era Solicitor’s Opinion, M-37041, issued on January 10, 2017, on the same subject that reached the opposite conclusion.