migratory bird treaty act nest removalmigratory bird treaty act nest removal

Under the ESA, we have determined that this rule regarding the take of migratory birds will have no effect on ESA-listed species. prohibits the disturbance, harassment, removal, and take of migratory birds or their nests. Id. . [T]he ambiguous terms `take' and `kill' in 16 U.S.C. No changes were made to the section of the MBTA at issue here following the later conventions except that the Act was modified to include references to these later agreements. If you are using public inspection listings for legal research, you The Service is committed to working with those that voluntarily seek to reduce their project-related impacts to migratory birds. The majority of these birds are federally protected under the Migratory Bird Treaty Act, which protects the birds, their nests, eggs, and feathers. This PDF is Article VII allows taking to resolve conflicts under extraordinary conditions when birds become seriously injurious to agricultural or other interests, subject to permits issued by the parties under regulations prescribed by them respectively. E.O. See Bob Stump National Defense Authorization Act for Fiscal Year 2003, Public Law 107-314, Div. on NARA's archives.gov. 2015) (there is reason to think that the MBTA's prohibition on `killing' is similarly limited to deliberate acts that effect bird deaths). Response: The Service announced the scoping process in a notice of intent (NOI) to complete an EIS in the Federal Register on February 3, 2020 (85 FR 5913). Congress intended take to be read consistent with its common law meaningto reduce birds to human control. In fact, agencies may codify interpretations struck down by courts and have subsequent courts defer to and uphold the later rulemaking. For example, the Service is working proactively with both the communication tower industry and with Federal agencies, cities, and other municipalities to address tower and glass collisions. Because data are unavailable about the distribution of possible range of measures and costs, we do not extrapolate cost data to small businesses. Response: The effects of this rule have been analyzed in the EIS accompanying this rulemaking. . Meridian also located numerous nests . In making that assumption, M-37041 improperly ignored the meaning and context of the actual acts prohibited by the statute. The Migratory Bird Treaty Act makes it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, . We have found that building partnerships domestically and internationally to build strategies for implementing measures that protect, manage, and conserve migratory birds is a more effective conservation tool than enforcing incidental take under the MBTA on a piecemeal basis with our limited law enforcement resources. documents in the last year, 883 Comment: Multiple Tribes stated that the United Nations Declaration on the Rights of Indigenous Peoples (2007) (UNDRIP), endorsed by the United States in 2010, recognizes that indigenous people must give Free, Prior and Informed Consent for projects affecting their interests, prior to approval of any project affecting their land or territories. MIGRATORY BIRD TREATY ACT (MBTA) . to the courts under 44 U.S.C. The Service has worked with project proponents to encourage the voluntary use of BMPs and used enforcement discretion to determine when an enforcement action was appropriate. Protection of Migratory Birds: Hearing on H.R. The Service determines the relevant language in section 2 to be ambiguous, which is consistent with the views of most Federal courts. The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. Following this discussion is a summary of mitigation measures and costs (Table 6) and a summary of the economic effects of the rule on the business sectors identified in Table 1 (Table 7). Rather, some have argue[d] that Congress expanded the definition of `take' by negative implication since [t]he exemption did not extend to the `operation of industrial facilities,' even though the government had previously prosecuted activities that indirectly affect birds. CITGO, 801 F.3d at 490-91. These mechanisms could reduce impacts to birds in some circumstances. 742, 744-45 (D. Idaho 1989) (The statute itself does not state that poisoning of migratory birds by pesticide constitutes a criminal violation. The Service's proposal does not even address its actual statutory authority. The due process concerns we raise in the preamble to this regulation apply to the Department's prior interpretation of section 2 of the MBTA, rather than the criminal provisions of section 6. However, the proposed action is based on a legal interpretation of the MBTA. Response: Given our interpretation of the MBTA, the commenter's proposal is not a viable option. This rule would not produce a Federal mandate on local or State government or private entities. 4, 1972) (Japan Convention); Convention between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, 29 U.S.T. Response: An analysis of reasonable alternatives to a proposed action is a requirement of the NEPA process. This rule effectively removes that directive. Response: The procedures followed in this rulemaking process were appropriate and lawful. The Migratory Bird Treaty Act (MBTA; 16 U.S.C. Regarding the future listing of migratory birds as threatened species, as stated in the final rule rescinding the blanket rules for threatened species (84 FR 44753, August 27, 2019) and restated here, our intention is to finalize species-specific section 4(d) rules concurrently with final listing or reclassification determinations. The court in Moon Lake identified an important and inherent limiting feature of the MBTA's misdemeanor provision: To obtain a guilty verdict . Exceptions are allowed for hunting . Comment: Multiple commenters opposed the proposed rule because it removes the MBTA as the only mechanism that the Service can apply to require actions that avoid or minimize incidental take that is otherwise preventable. Data not available for number of operators who have implemented these practices. We summarized and addressed substantive comments received from the Government of Canada in Appendix C of the final EIS. Assistant Secretary for Fish and Wildlife and Parks. The commenters noted that the proposed rule change is extremely limited in scope as it fails to address the evolution of threats to migratory birds or to ensure the sustainability of healthy bird populations. The commenter called for the Office of Information and Regulatory Affairs to review the justification for consistency with these Executive Orders. 10, 1972, 23 U.S.T. Interior's elimination of longstanding Federal protection harms State interests. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. 22-23 (1917) (statement of R.W. of the issuing agency. The Department appears to be rushing through this entire process to meet an arbitrary timeline. No regulations have been issued to create a permit scheme to authorize incidental take, so most potential violators have no formal mechanism to ensure that their actions comply with the law. Even though destruction of nest by itself is not prohibited under the MBTA, nest destruction that results in the unpermitted take ofmigratory birds, or their eggs, is illegal and fully prosecutable under the MBTA. "Take" broadly means to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, transport." . The commenter Start Printed Page 1150recommended including a clause to stop the implementation of this proposed rule if populations are negatively impacted by incidental take from anthropogenic sources. Fish and Wildlife Service (hereafter Service). Thirteen States (Illinois, Arkansas, Oklahoma, Texas, North Dakota, South Dakota, Nebraska, Montana, Wyoming, Colorado, Utah, New Mexico, and California) have regulations governing the treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. . The commenter noted that the current administration is relaxing a number of regulations such as the Clean Water Act and the Endangered Species Act. Not all small businesses will be impacted by this rule. We established 45 days as an appropriate period for public comment on the draft EIS. FWS-HQ-MB-2018-0090 and at https://www.doi.gov/solicitor/opinions. However, the relevant acts prohibited by the MBTA are voluntary acts directed at killing or reducing an animal to human control, such as when a hunter shoots a protected bird causing its death. Every effort shall be made by the Contractor not to disturb any nests with eggs or young. See Rollins, 706 F. Supp. Subsequent Protocols amending both these Conventions also did not explicitly address incidental take or otherwise broaden their scope to prohibit anything other than purposeful take of migratory birds. The authority citation for part 10 continues to read as follows: Authority: Any likely impacts of a Federal action on migratory bird species also listed under the ESA would require consultation whether or not incidental take of that species is prohibited under the MBTA. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y. The commenters noted that the proposed rule was published with a notice of intent to prepare an EIS but without any concurrent environmental analysis of alternatives. 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). Thus, the Sweet Home majority's ultimate conclusion that Congress's decision to define take in the ESA obviated the need to divine its common-law meaning is inapplicable here. See United States v. Moon Lake Electrical Ass'n, 45 F. Supp. Average number of pits per business is unknown. This refusal to scrutinize an otherwise viable alternative that would further the agency's own purported objectivei.e., increasing certainty and consistency in enforcementwhile also promoting the conservation of migratory birds, constitutes precisely the kind of arbitrary and capricious conduct that the Supreme Court denounced in its ruling on the DACA rescission. However, the interpretation of the MBTA applying Start Printed Page 1154strict liability to the law's criminal misdemeanor provision covering incidental take raises no constitutional problems, nor is it contrary to the intent of Congress. The Service engaged the NEPA process at the time it began to consider rulemaking to codify the M-Opinion (the reasonable alternatives include potential outcomes of the proposed rulemaking), and that process will be complete before any final formal agency decision is made. 2010) (concluding that under an incidental take interpretation, [t]he actions criminalized by the MBTA may be legion, but they are not vague). Pursue means [t]o follow with a view to overtake; to follow eagerly, or with haste; to chase. Webster's Revised Unabridged Dictionary 1166 (1913); Hunt means [t]o search for or follow after, as game or wild animals; to chase; to pursue for the purpose of catching or killing., Capture means [t]o seize or take possession of by force, surprise, or stratagem; to overcome and hold; to secure by effort., Habitat destruction, described generally as the extension of agriculture, and particularly the draining on a large scale of swamps and meadows; and, Hunting, described in terms of improved firearms and a vast increase in the number of sportsmen.. 2d 1070, 1080 (D. Colo. 1999) (the MBTA's legislative history indicates that Congress intended to regulate recreational and commercial hunting); Mahler, 927 F. Supp. This analysis examines the potential effect of the rule on small businesses in selected industries. This table of contents is a navigational tool, processed from the This rulemaking will not affect those investigations. Fish and Wildlife Service interpretations and an earlier Solicitor's Opinion, M-37041, Incidental Take Prohibited Under the Migratory Bird Treaty Act. The Office of the Solicitor performs the legal work for the Department of the Interior, including the U.S. For the selected industries, we do not provide further analysis because minimal effects are expected on small businesses relative to an environmental baseline based on current regulations and voluntary conservation measures, due to the fact that mitigation costs are small relative to the cost of projects (see Table 7). However, if the nest is abandoned or no . 4, 1972, 25 U.S.T. A, Title III, Sec. The commenter further noted that the Service failed to disclose the thought process followed in the selection of the proposed course of action in the proposed rule. 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. informational resource until the Administrative Committee of the Federal ), which implements treaties with Canada, Mexico, Japan, and the Russian Federation. We do not distinguish the acquisition of these wild beasts and birds by whether one has captured them on his own property [or] on the property of another; but he who wishes to enter into the property of another to hunt can be readily prevented if the owner knows his purpose to do so. Individual States therefore rely on Federal law (and the international treaties implemented by Federal law) to protect their own bird populations when individual birds migrate beyond their boundaries. Response: The Service recognizes that there are numerous reasons why an entity would continue to implement best practices, including other Federal or State laws, industry standard practices, public perception, etc. The commenters claimed that the rule communicates that for even the most egregious and demonstrably deliberate violations, violators' real-world liability will still be limited by Service funding, investigatory resources and expertise, and political will with respect to enforcement. The status of migratory bird populations in the areas described by the commenter may be relevant in our decision to permit take under the Service's current permit system. Therefore nest box monitors are legally allowed to remove or harass them. Potential due process concerns are relevant when the language of a statute is ambiguous and assist in divining its proper meaning. 703 mean `physical conduct of the sort engaged in by hunters and poachers. 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. Regarding enforcement of Federal law, the Department and the Service are obligated to interpret and follow the law established by Congress. An intention found nowhere in its text, legislative history, or subsequent interpretation and implementation. This type of uncertainty is problematic under the Supreme Court's due process jurisprudence. The agency in essence has already been implementing the underlying policy change that is reflected in the rulemaking without the benefit of public review and comment at the time it made that policy change. Comment: A commenter stated that the Service has done little to demonstrate how this proposed rule actually benefits birds, instead focusing almost exclusively on economic interests of previously regulated industries. Even visitation to these rookeries by people getting too close and subsequently disrupting nesting activities, can result in take since young birds may be frightened, leave their nests prematurely, become displaced, and die from starvation as their parents return only to the vicinity of the nest site. ., 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). Collisions with wind turbines, which kill an estimated 234 thousand birds per year. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. A few commenters noted that their industry sectors will continue to work with Federal and State agencies and help them fulfill their mission to conserve, protect, and enhance wildlife and their habitat for the continuing benefit of all people. , the government must prove proximate causation. Moon Lake, 45 F. Supp. at 1081 (quoting 56 Cong.

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