migratory bird treaty act nest removalmigratory bird treaty act nest removal

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. on Foreign Affairs, 64th Cong. New Documents on NARA's archives.gov. Size distribution of oil pits is unknown. The commenters suggested that, without any legal obligations, industries no longer need to consider how their activities may harm migratory birds or take action to prevent any harm. Comment: One commenter recommended that the Service prohibit incidental take that results from an extra-hazardous activity. 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. $4,000 one-time cost for underwater setting chute 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. Therefore, the Supreme Court's holding in Bostock does not apply here. 1559 (S.D. A primary reason for engaging in this rulemaking is to remove any uncertainty in application of the statute to alleviate precisely the concern voiced by this comment. . The U.S. Supreme Court described this purpose as a national interest of very nearly the first magnitude, and the origin of the statute to implement the international treaties signed for migratory bird conservation must not be overlooked. About the Federal Register ), we have determined the following: a. The history of the MBTA and the debate surrounding its adoption illustrate that the Act was part of Congress's efforts to regulate the hunting of migratory birds in direct response to the extreme over-hunting, largely for commercial purposes, that had occurred over the years. 1997) (MBTA's plain language prohibits conduct directed at migratory birds. High variability in survey costs and high variability in need to conduct surveys. The Service's selection of this alternative and the basis for that selection are provided in the Record of Decision signed by the Director of the U.S. As the Fifth Circuit explained, [a] single carve-out from the law cannot mean that the entire coverage of the MBTA was implicitly and hugely expanded. CITGO, 801 F.3d at 491. Response: The Service began the NEPA process at the appropriate timewhen it first considered rulemaking regarding the interpretation of the MBTA originally set forth in M-37050. 3329; and Convention between the United States of American and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 U.S.T. "In reference to your request for documentation for the removal of an active Osprey nest from the light pole at the soccer field, please be advised that none exist. We will continue to work with any entity that seeks to reduce their impacts to migratory birds to achieve conservation outcomes. 99-445, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. The commenters noted there is a successful history of the Federal, State, and local governments along with industry working in coordination to implement measures to reduce impacts to migratory birds and that the proposed rule would dismantle the extraordinary and successful history of this cooperation. Comment: A letter from some members of the U.S. Senate stated that the stakes of the proposed rule are considerable, and like the legal opinion, it will have a significant detrimental impact on migratory birds. Response: The enforcement of the MBTA is just one part of how the Service works with others to conserve migratory birds. M-37050 concluded that the MBTA does not prohibit incidental take. The MBTA states that unless permitted, it is unlawful to . Use the PDF linked in the document sidebar for the official electronic format. They asserted that the inclusion of 28 statements of support for this proposed rule within the rulemaking announcement establishes a record of pre-decisional collusion with certain interest groups by a regulatory agency that has tainted the entire rulemaking process and clouded the ultimate decision the Service will be called upon to make, once the comment period closes and all public testimony is fairly and impartially evaluated. The Service disagrees that this rulemaking restricts the meaning and intent of the MBTA. Bird control is not as simple as just trying to figure out how to get rid of a birds nest. The number of States and the policy details are unknown. In the absence of a permit issued pursuant to Departmental regulation, it is not clear that the Service has any authority under the MBTA to require minimizing or mitigating actions that balance the environmental harm from the taking of migratory birds with other societal goals, such as the production of wind or solar energy. It is also unknown how many businesses continued or reduced practices to reduce the incidental take of birds since publication of the Solicitor's M-Opinion. For example, the Service will continue to work with any partner that is interested in reducing their impacts on birds by developing voluntary practices to reduce mortality and providing technical assistance for effectively implementing those practices. Reading the MBTA to capture incidental takings could potentially transform average Americans into criminals. 12988, we determined that this rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. Electric Bulk Power Transmission (NAICS 221121), Retrofit power poles to minimize eagle mortality, $7,500 per power pole with high variability of cost. Response: The UNDRIPwhile not legally binding or a statement of current international lawhas both moral and political force. . The MBTA fails this test. 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). Protected wildlife includes those species listed as Endangered, Threatened or Species of Special Concern. See, e.g., U.S. Comment: One commenter noted that the proposed codification differentiates between wanton acts of destruction and criminal negligence, on the one hand, and the accidental or incidental take of a protected bird, however regrettable, on the other. The Service proposes that kill and take exclude unintentional actions as they are listed among directed actions such as hunt or pursue. Yet this construction renders the list meaningless, working contrary to established norms of interpretationif kill were limited to hunt and pursue, then there would be no need to include hunt and pursue on the list. Installation of flashing obstruction lighting. The prior M-Opinion posited that amendments to the MBTA imposing mental state requirements for specific offenses were only necessary if no mental state is otherwise required. He noted that a statute's application may reach `beyond the principle evil' legislators may have intended or expected to address, Bostock, 140 S. Ct. 1731, 1749, but only where no ambiguity exists in the broadness of that statutory language. . 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. Developing an authorization program was not within the scope of our proposal. The scope of prohibited conduct covers actions, which require intentpursue, hunt, and capture are all actions directed at wildlife and cannot be performed by accident. Thus, the only legislative enactment concerning incidental activity under the MBTA is the 2003 appropriations bill that explicitly exempted military-readiness activities from liability under the MBTA for incidental takings. . 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. 703 et seq.) 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. Certainly, other Federal laws may require consideration of potential impacts to birds and their habitat in a way that furthers the goals of the Conventions' broad statements. 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. [FR Doc. Our interpretation of the MBTA is primarily governed by the language of the statute, its legislative history, and subsequent case law. Counts are subject to sampling, reprocessing and revision (up or down) throughout the day. In making that assumption, M-37041 improperly ignored the meaning and context of the actual acts prohibited by the statute. Thus, we did not consider developing a general permit program as suggested by the commenters.Start Printed Page 1149. The Technicians immediately identified three mourning doves, which are protected by the Migratory Bird Treaty Act. Nine Tribes requested government-to-Start Printed Page 1153government consultation. If left to the States, the result would be a patchwork of legal approaches, reducing consistency nationwide. In some cases, these industries have been subject to enforcement actions and prosecutions under the MBTA prior to the issuance of M-37050. Additional States may create new regulations to clarify that they have jurisdiction to regulate or otherwise oversee incidental take of migratory birds. The subsequent amendments have instead fine-tuned the mens rea required for violations directed at migratory birds, including commercial use, hunting, and baiting. Section 3(a) also requires the Secretary to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions [listed in section 2 between the United States and Canada, Mexico, Russia, and Japan] to adopt such regulations allowing these otherwise-prohibited activities. Courts of Appeals in the Second and Tenth Circuits, as well as district courts in at least the Ninth and District of Columbia Circuits, have held that the MBTA criminalizes some instances of incidental take, generally with some form of limiting construction. The most effective way to reduce uncertainty and have a truly national standard is for the Service to codify and apply a uniform interpretation of the MBTA that its prohibitions do not apply to incidental take, based upon the Fifth Circuit's ruling in CITGO Petroleum Corporation. Section 3 proposes to turn these powers over to the Secretary of Agriculture. As Justice Scalia noted, the term [`take'] is as old as the law itself. Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting). to the courts under 44 U.S.C. Netting of oil pits and ponds Closed loop drilling fluid systems, $130,680 to $174,240 per acre to net ponds Cost not available for closed loop drilling fluid systems, but may be a net cost savings in arid areas with water conservation requirements. 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. We established 45 days as an appropriate period for public comment on the draft EIS. 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. Executive Order (E.O.) Natural Res. Response: The proposed rule does not alter the burden of proof for intentional take under the MBTA. 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. In addition, Federal agencies are required to evaluate their impacts to the environment under NEPA. Comment: Commenters claimed that the Service must examine the effect the proposed rule would have on certain ESA-listing decisions, such as a not-warranted determination or 4(d) rule, which may have been determined with the understanding that the MBTA incidental take protections would still apply. It is not required for projects to submit data on incidental take; however, we encourage proponents voluntarily to submit these data so that we are able to track bird mortality. Comment: If the press release accepted quotes from industry and government entities, it should also have included quotes and perspectives from environmental NGOs or ornithologists to comply with APA fairness rules. The Service has provided a Regulatory Impact Analysis with the proposed rule, which provides a cost-benefit analysis of the rule along with reasonable alternatives, to comply with Executive Order 12866 and certifies that the rule will not have a significant economic impact on a substantial number of small entities to comply with the Regulatory Flexibility Act. The Canadians reasonably want some assurances from the United States that if they let those birds rear their young up there and come down here, we will preserve a sufficient supply to permit them to go back there. This repetition of headings to form internal navigation links Comment: One commenter noted that the MBTA has not been used against many businesses in court because it has encouraged businesses to self-regulate, to the benefit of people and birds alike, as well as those businesses. It was not until more than 50 years after the initial adoption of the MBTA and 25 years after the Mexico Treaty Act that Federal prosecutors began applying the MBTA to incidental actions. Add 10.14 to subpart B to read as follows: The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. By contrast, the verbs kill and take are ambiguous in that they could refer to active or passive conduct, depending on the context. Response: The effects of this rule have been analyzed in the EIS accompanying this rulemaking. See United States v. Apollo Energies, Inc., 611 F.3d 679, 689 (10th Cir. The United States Government announced its support of the UNDRIP in 2010. Thus, under common law [t]o `take,' when applied to wild animals, means to reduce those animals, by killing or capturing, to human control. Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting); see also CITGO, 801 F.3d at 489 (Justice Scalia's discussion of `take' as used in the Endangered Species Act is not challenged here by the government . Economic effects on government entities are examined for each alternative in the RIA. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. Given the legal uncertainty and political controversy surrounding Federal regulation of intentional hunting in 1918, it is highly unlikely that Congress intended to confer authority upon the executive branch to prohibit all manner of activity that had an incidental impact on migratory birds. Seabirds are specifically excluded from the definition of bycatch under the Magnuson-Stevens Fishery Conservation and Management Act, and therefore seabirds not listed under the Endangered Species Act may not be covered by any mitigation measures. structure Response: We disagree that this rulemaking will result in a substantial increase in the number of migratory birds killed. There are also State and local laws that would prevent the unnecessary killing of birds. However, they also outlined mechanisms to protect habitat and prevent damage from pollution and other environmental degradation (domestically implemented by the Migratory Bird Conservation Act and other applicable Federal laws). Due to the biological and behavioral characteristics of some migratory bird species, destruction of their nests entails an elevated risk of violating the MBTA. Table 6Best Management Practices Costs by Industry1, Table 7Summary of Economic Effects on Small Businesses. This approach would include creating a definition of extra-hazardous activities and enforcing incidental take when it results from gross negligence. developer tools pages. This also includes the nests, eggs or chicks of protected birds. Take and possession under MBTA can be authorized through regulations, such as hunting regulations, or permits, e.g., salvage, research, . 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. Under the ESA, we have determined that this rule regarding the take of migratory birds will have no effect on ESA-listed species. Annual nationwide labor cost to implement wind energy guidelines: $17.6M The Service is charged with implementing the statute as written. 703, Historical and Statutory Notes. With this proposed change, the Service is making a unilateral change that will later be deemed an abrogation of our international agreements with these other sovereign nations. Comment: Although the MBTA was written in large part to address the then-largest threat to migratory birdshunters and poachersthe proposed rule offers no evidence to show its passage was intended to regulate only the activities that threatened birds in 1918. We will not speculate on the views of our Convention partners beyond the public comments reflected here. The Service notes that a Federal regulation applies across all agencies of the Federal Government and provides a more permanent standard that the public and regulated entities can rely on for the foreseeable future, in contrast to continued implementation of the MBTA under a legal opinion. Subsequent legislative history does not undermine a limited interpretation of the MBTA, as enacted in 1918. Thus, limiting incidental take to direct and foreseeable results does little to prevent absurd outcomes. In addition, a variety of factors would influence whether, under the previous interpretation of the MBTA, businesses would implement such measures. 704(a). 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. Despite the phrase incidental take not appearing in either the MBTA or implementing regulations, its protective statutory intent remains clear, as shown by its common and long-time use in Congressional hearings and correspondence, and in inter- and intra-agency communications. The Department appears to be rushing through this entire process to meet an arbitrary timeline. . On August 11, 2020, a district court vacated M-37050, holding that the language of the MBTA plainly prohibits incidental take, despite multiple courts failing to agree on how to interpret the relevant statutory language. 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. That which it meant when adopted, it means now. South Carolina v. United States, 199 U.S. 437, 448 (1905). 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. And the policy details are unknown and political force migratory birds ), we have determined that this regarding... 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