migratory bird treaty act nest removal

Comment: One commenter recommended that the Service consider to what extent the proposed rule may increase regulatory uncertainty for industrial entities and other stakeholders. These distinctions are inherent in the nature of the word `taking' and reveal the strict liability argument as a non-sequitur. 801 F.3d at 493. The Service received many responses during the public comment period for the proposed rule from migratory bird experts and interested non-governmental organizations. The Migratory Bird Treaty Act is the primary legislation protecting native birds in the United States and one of this country's earliest environmental laws. Rather, it is the only possible reading of the MBTA that accomplishes its intended purpose. This rule addresses the Service's responsibilities under the MBTA. To this end, the United States supports these aspirations of the UNDRIP through the government-to-government consultation process when agency actions may affect the interests of federally recognized Tribes. If you are using public inspection listings for legal research, you The commenter notes there is little mention in either notice of biological impacts or assessment of bird species protected by the Act. The proposed rule uses the commonly understood definition of incidental and does not purport to redefine that term in any way. Williams, Solicitor's Office, Department of Agriculture). Many comments included additional attachments (e.g., scanned letters, photographs, and supporting documents). See Protocol between the Government of the United States and the Government of Canada Amending the 1916 Convention between the United Kingdom and the United States of America for the Protection of Migratory Birds, Sen. Treaty Doc. While statutes do not have to be drafted with `mathematical certainty,' they must be drafted with a `reasonable degree of certainty.' There are also State and local laws that would prevent the unnecessary killing of birds. If the MBTA was originally understood to protect migratory bird habitats from incidental destruction, enactment of the Migratory Bird Conservation Act 11 years later would have been largely superfluous. E.O. The commenter noted that under the prior interpretation of the MBTA, the party causing the disaster was clearly held liable and financially responsible. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. Thus, we disagree with the commenter's assertion that this rule restricts or alters the meaning or intent of the MBTA. 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. We did not receive any information on that issue during the public comment period for this rule. Response: The Service acknowledges that birds are currently in decline. The commenter called for the Office of Information and Regulatory Affairs to review the justification for consistency with these Executive Orders. It further states [e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . 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. 2002), vacated on other grounds sub nom. For instance, the manner and means of hunting may differ from bow hunting to rifles, shotguns, and air rifles, but hunting is still a deliberately conducted activity. Protections and Prohibitions Nests used or built by state-Threatened birds must be protected from destruction or disturbance that constitutes take including harm or harassment while they are active. 703-712) makes it unlawful to pursue, hunt, kill, capture, possess, buy, sell, purchase, or barter any migratory bird, including the feathers or other parts, nests, eggs, or migratory bird products. The Service will continue to work with partners to address migratory bird declines outside of a regulatory context. Moreover, the views of one Congress regarding the construction of a statute adopted many years before by another Congress are typically given little to no weight, particularly where, as here, the amendments did not disturb the operative language governing the scope of that statute. 703 et seq.) That approach would require congressional action. A takings implication assessment is not required. Response: A wide array of statutory mandates provide protections to wildlife, including migratory birds. The MBTA will continue to operate as Congress intended it to operate. Owing to the diversity in operations of the various industries affected by this rule, USFW shall develop industry specific guidelines for developing precautionary measures to prevent the taking or killing of migratory birds.. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). The NEPA process informed our decision-making process culminating in this final rule. It is misleading and simply false to suggest, as Interior does, that any regulation of incidental take under the MBTA is unduly burdensome. the state without cooperative management or removal of . documents in the last year, by the Federal Aviation Administration at 375. See Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). The cases cited by the court in footnote 13 interpreting the term kill do so in the context of criminal homicide, which unsurprisingly interprets kill in the broader sense. We disagree with the commenter's interpretation of the MBTA and our nondiscretionary and discretionary duties to implement the MBTA. Response: This rulemaking is based on the Department's interpretation of ambiguous language in a statute the Secretary is charged with implementing and does not amend the language of the MBTA. Section 7 of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 703-712) and state protected by Chapter 97A of the Minnesota Statutes. 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. The Department appears to be rushing through this entire process to meet an arbitrary timeline. 703-712), which implements the above-mentioned treaties. However, Congress addressed hunting and habitat destruction in the context of the Migratory Bird Treaty through two separate acts: The Migratory Bird Conservation Act provided the authority to purchase or rent land for the conservation of migratory birds, including for the establishment of inviolate sanctuaries wherein migratory bird habitats would be protected from persons cut[ting], burn[ing], or destroy[ing] any timber, grass, or other natural growth. Migratory Bird Conservation Act, Sec. These efforts and partnerships are not impacted by this rulemaking, and data will continue to drive the actions of the Service to protect migratory birds. No organizations or persons outside of the Federal Government were given an advance copy of the proposed rule to read before it was published in the Federal Register. This prototype edition of the Comment: The original legislative intent of the MBTA was the protection and sustainability of migratory bird populations. Implementing legislation for the treaty with the Soviet Union also did not amend section 2. Interpreting the MBTA to apply strict criminal liability to any instance where a migratory bird is killed as a result of these threats would certainly be a clear and understandable rule. Currently, over 1,000 species of birdsincluding all species native to the United States or its territoriesare protected by the MBTA. Based upon the Service's analysis of manmade threats to migratory birds and the Service's own enforcement history, common activities such as owning and operating a power line, wind farm, or drilling operation pose an inherent risk of incidental take. E.O. To pretend otherwise ignores the agency's own established practices and guidance and constitutes another failure of the Federal Government's trust responsibilities. Comment: Multiple commenters supported the proposed action because a clarification of the scope of the MBTA was needed to avoid unnecessary regulation of industry projects. For this reason, we cannot introduce a mental-state requirement such as negligence to the MBTA's misdemeanor provision. 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. The clause proposed by the commenter would be inconsistent with our interpretation of the Act and would essentially add a requirement to the MBTA. and 25% are designated (in whole or in part) as Birds of Conservation Concern (BCC).). Aug. 11, 2020) (dismissing constitutional concerns, but on the basis that the relevant language is unambiguous). As the Court has advised, where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. 1536(a)(1). This definition still requires law enforcement to prove intent, which can be just as difficult to prove, just as legally uncertain, and equally burdensome to law enforcement. . [n]o 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. 85 FR at 5922. Fish and Wildlife Service (hereafter Service). However, if the nest is abandoned or no . 2010) (concluding that under an incidental take interpretation, [t]he actions criminalized by the MBTA may be legion, but they are not vague). WHAT TOWER OPERATORS CAN DO TO PROTECT RAPTORS AND NESTS ON TOWERS Response: The Service works with offshore-wind-energy companies and Federal and State agencies responsible for regulating this industry. 510 (E.D. Such small entities would benefit from this rule because it would remove uncertainty about the potential impacts of proposed projects. Response: The intent of this rulemaking is not to harm States, but to interpret the MBTA in the manner Congress intended when it drafted and enacted the statute. provide legal notice to the public or judicial notice to the courts. . Within our environmental analysis of this rulemaking conducted under NEPA, we acknowledge that other Federal or State regulations may require measures that reduce incidental take of birds. Fish and Wildlife Service. . 16 U.S.C. 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. We will continue to work with any entity that seeks to reduce their impacts to migratory birds to achieve conservation outcomes. A small government agency plan is not required. Document page views are updated periodically throughout the day and are cumulative counts for this document. These mechanisms could reduce impacts to birds in some circumstances. The commenters called for more protections and see the proposed rule as weakening actions for the conservation of migratory birds. In addition, much of the industry is increasingly using closed systems, which do not pose a risk to birds. Cost not available for wastewater systems. . This final rule defines the scope of the MBTA to exclude incidental take, thus incidental take that occurs anywhere within the United States and its territories is not an enforceable violation. The Service drafted the proposed rule with sufficient flexibility to incorporate the alternatives analyzed in the draft EIS. It is eminently foreseeable and probable that cars and windows will kill birds. Some permits are available online and others are submitted via email applications to wildlifepermits@myfwc.com. Comment: One commenter stated that as a result of the Federal Circuit Court split and dueling Solicitor's opinions, and without MBTA regulations addressing what activities are prohibited under the MBTA, the same activities that are entirely lawful in some parts of the country could give rise to strict criminal liability in parts of the country in which Federal Circuit Courts have held that unintentional take is prohibited under the MBTA. Natural Res. Thus, it does not rely on the statutory language quoted by the commenter. With respect to the wind industry, the Service will continue to encourage developers to follow our Land-based Wind Energy Guidance developed through the collaboration of many different stakeholders, including industrial and environmental interests. The Solicitor's interpretation marked a change from prior U.S. Under the normal NEPA EIS process, Federal agencies would conduct scoping of an issue, develop multiple action alternatives, put those alternatives out for public notice and comment, and ultimately select an alternative to advance. The commenters noted that through judicious enforcement and by working directly with industries to develop and implement best management practices, the MBTA has provided a key incentive for adopting common-sense practices that protect birds. To a certain extent, some degree of short-term uncertainty is to be expected when a change in agency practice occurs. The EIS notes that it may result in a measurable increase, but we do not expect it to be substantial. 1555, Sec. Other factors entities consider include public perception, status as a green company, size of company, cost of implementation, perceived risk of killing migratory birds, or availability of standard industry practices. Comment: One commenter focused on impacts of wind energy and suggested that the final rule should provide language that terminates wind-energy projects where the migratory bird mortality levels are not remediable. 42; 19 U.S.C. A rulemaking cannot violate a statute or make it inoperable and must be consistent with the legislative intent of the law. should verify the contents of the documents against a final, official at 745 (dismissing charges against a farmer who applied pesticides to his fields that killed a flock of geese, reasoning [f]armers have a right to know what conduct of theirs is criminal, especially where that conduct consists of common farming practices carried on for many years in the community. Osprey are protected by the Migratory Bird Treaty Act (MBTA) and may be afforded additional state protections in some loca-tions. FWS-HQ-MB-2018-0090. In all three categories, the Service is presently ill suited to fulfill the role envisioned by the proposed rule. Comment: The proposed rule incorrectly concludes that the terms kill and take are ambiguous. Many of the companies and projects that face potential liability under the MBTA operate across boundary lines for judicial circuits. Search for volunteer opportunities around the country, News about wonderful wild things and places, FWS is taking steps to mitigate climate impacts, Search employment opportunities with USFWS, Minnesota Valley NWR - Fire as a Land Management Tool, Candidate Conservation Agreements (CCA & CCAA), Coastal Barrier Resources Act Project Consultation, Coastal Barrier Resources System Property Documentation. Moon Lake, 45 F. Supp. That does not mean, however, that Congress intended for strict liability to apply to all forms of human activity, such as cutting a tree, mowing a hayfield, or flying a plane. 4647. . This approach would include creating a definition of extra-hazardous activities and enforcing incidental take when it results from gross negligence. In some sense, actions directed at migratory birds are deliberate in nature, but the concept of foreseeability is not relevant. Size distribution of oil pits is unknown. $7,500 per power pole with high variability of cost High variability in cost and need to retrofit power poles. Multiple federally recognized Tribes expect DOI to honor this policy in order to ensure no unilateral actions are taken that affect Tribal land, territories or people without Tribal consent. Under the trust responsibility, the United States is legally responsible for the protection of Tribal lands, assets, resources, and treaty rights for the benefit of Tribes. Interior and the Service fail to recognize that the MBTA's singular statutory purpose is to protect and conserve migratory birds. 7 (1917) (statement of Rep. Miller). . Response: Per the National Environmental Policy Act (NEPA), the Service analyzed the impacts mentioned by the commenter within the draft Environmental Impact Statement (EIS) published June 5, 2020. This rule will not create substantial direct effects or compliance costs on State and local governments or preempt State law. 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. Accomplishes its intended purpose only possible reading of the law decision-making process in! Established practices and guidance and constitutes another failure of the Federal Aviation Administration at 375 this prototype of. Of information and Regulatory Affairs to review the justification for consistency with these Executive Orders protections and the! 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