Volume 26, Number 1    February 1, 2018  CHANGE THIS DATE

Feline Crime? DOI Opinion on Incidental Take Under the Migratory Bird Treaty Act

On December 22, 2017, the Department of the Interior (DOI) released M-37050: The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, formally defining its interpretation of the Migratory Bird Treaty Act – that the statute’s prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same does NOT apply to incidental or accidental take.  M-37050 permanently withdraws and replaces M-37041 Incidental Take Prohibited Under the Migratory Bird Treaty Act.

Robins are one of many species protected by the MBTA photo credit: American Robin (Turdus migratorius) by mdf via Wikimedia Commons

Robins are one of many species protected by the MBTA
photo credit: American Robin (Turdus migratorius) by mdf via Wikimedia Commons

This change allows project developers to avoid the delays typically associated with avoidance of migratory birds and their nests, such as time of year restrictions on tree clearing.  Since this memo withdraws and replaces M-37041 – Incidental Take Prohibited Under the Migratory Bird Treaty Act, DOI is effectively stating that there is no legal standing to prosecute incidental take under the MBTA, and is requiring the U.S. Fish & Wildlife Service (USFWS) to stop regulating incidental take of migratory birds. 

As the MBTA evolved from the Lacey Act of 1900, to the Weeks-McLean Law, then the Migratory Bird Treaty Act of 1918, and finally through several variations to its current state today, the issue of incidental take under these agreements has been the subject of debate and of dissenting opinions throughout Circuit Courts and Courts of Appeals.  In support of its current opinion, the DOI cites the historical context of the treaty at the turn of the 19th century and the original intent to protect migratory bird populations from being devastated by commercial hunting.

In addition to discussing this history, the DOI memo also lays out further support for a limited interpretation of MBTA, identifies the Constitutional problems that arise from attempting to enforce vague laws, and highlights the potentially unlimited scope of liability that would accompany broader interpretation of the treaty.  For example – according to the U.S. Fish and Wildlife Service (USFWS), cats are the “top human-caused threat to birds”, killing an estimated 2.4 billion birds per year.  A broad interpretation of the MBTA that lumps incidental take together with the intentional and purposeful take of migratory birds that the treaty prohibits, had the potential to turn cat-owners into criminals by making such feline incidental take a misdemeanor crime! 

By issuing this opinion, DOI clarified the position of the current Administration that “Interpreting the MBTA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principle that ambiguity in criminal statutes must be resolved in favor of defendants.” 

Stay tuned for updates as we follow the implementation of this opinion throughout related agencies such as the USFWS!  For questions about the MBTA and how it may affect your projects, please contact Ben Rosner or Mike Klebasko.


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