This series of events would lead to further restrictions and require substantial resources to manage and ensure conservation and recovery. The MBTA states "While it is illegal to collect, possess, and by . Within the EIS, the Service analyzed impacts of the no action alternative and two additional alternatives on (1) The overall effect of each alternative on migratory bird populations, (2) the effect of any decrease in migratory bird populations on ecosystem services, (3) the potential effects of climate change in combination of each alternative, and (4) the impacts to industry and small business that may profit from migratory birds. 703-712) and state protected by Chapter 97A of the Minnesota Statutes. prohibits the disturbance, harassment, removal, and take of migratory birds or their nests. However, this rulemaking is not expected to affect significantly those continuing declines. . Below we list some humane, legal actions for controlling or deterring these two species. Table 4 shows the distribution of businesses by employment size and sales. Response: We disagree that this rulemaking will result in a substantial increase in the number of migratory birds killed. Assistant Secretary for Fish and Wildlife and Parks. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This fact remains true today and takes on new importance with the spread of invasive species and outbreaks. Enough birds will keep every insect off of every tree in America, and if you will quit shooting them, they will do it. Instead, because the term kill is ambiguous in the context of section 2, we must read kill along with the preceding terms and conclude they are all active terms describing active conduct. . Mahler, 927 F. Supp. Closed loop drilling fluid systems typically used for reasons other than bird mitigation. 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. See U.S. Response: The Supreme Court's decision in Bostock is not applicable to our interpretation of the MBTA. Simply stating that the Service has used the best available science is not sufficient. However, in lieu of an initial or final regulatory flexibility analysis (IRFA or FRFA) the head of an agency may certify on a factual basis that the rule would not have a significant economic impact on a substantial number of small entities. See Convention between the Government of the United States and the Government of Japan for the Protection of Migratory birds and Birds in Danger of Extinction, and their Environment, 25 U.S.T. While the term kill can certainly be interpreted broadly in a general sense, we disagree that kill should take on its most expansive meaning in the context of section 2 of the MBTA. 12630, this rule does not contain a provision for taking of private property, and would not have significant takings implications. 104-28 (Dec. 14, 1995) (outlining conservation principles to ensure long-term conservation of migratory birds, amending closed seasons, and authorizing indigenous groups to harvest migratory birds and eggs throughout the year for subsistence purposes); Protocol between the Government of the United States of America and the Government of the United Mexican States Amending the Convention for Protection of Migratory Birds and Game Mammals, Sen. Treaty Doc. 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. The commenter stated that the proposed rule does not facilitate the Service's only authorized action under the statute, which is the authority to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, etc., of such birds, or any part, nest, or egg thereof. Comment: The Flyway Councils noted that the proposed rule was brought forth without the proper procedures as outlined by NEPA and the APA. The Service's proposal does not even address its actual statutory authority. The Court held that when an agency rescinds a prior policy its reasoned analysis must consider the `alternative[s]' that are `within the ambit of the existing [policy].' 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. Prior to the publication of the proposed rule, the Service held six public scoping webinars in March 2019, which were open to any members of the public, including members of Federal and State agencies, Tribes, non-governmental organizations, private industries, and American citizens. As explained above and in the rationale set forth in Regulatory Planning and Review, the economic effects on most or all regulated entities will be positive and this rule is not a major rule under SBREFA (5 U.S.C. Because there is not now, nor has there previously been a large-scale permit program for incidental take, the baseline does not include the potential costs of complying with such a program, including the regulatory uncertainty associated with permit approval, compliance with other statutes (e.g., the National Environmental Policy Act), and potential litigation. . Due to these unknowns, we do not extrapolate cost data to small businesses. The final EIS and Regulatory Impact Analysis analyze the ecosystem services, such as insect consumption, provided by migratory birds. Senator Smith, who introduced and championed the Act . 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. Instead, the balance of the legislative history favors the opposite interpretation as explained in the preamble. . Thus, codifying the Service's interpretation of the scope of the MBTA under a gross negligence standard would only serve to reduce legal certainty. However, the Service continues to work with the bird conservation community to identify, support, and implement bird-monitoring programs. . In other statements, various members of Congress expressed concern about sportsmen, people killing birds, shooting of game birds or destruction of insectivorous birds, and whether the purpose of the MBTA was to favor a steady supply of game animals for the upper classes. Moon Lake, 45 F. Supp. Thus, Congress spoke clearly to the matter of whether the MBTA scope includes incidental takes and kills. A few examples of our partnership work include: (1) Managing and implementing grant programs under the Neotropical Migratory Bird Conservation Act and North American Wetlands Conservation Act, (2) using Joint Ventures to build regional partnerships for habitat and species conservation, and (3) working with other Federal, State, and industry partners to develop voluntary solutions for reducing impacts to migratory birds and their habitat. Section 7 of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. In accordance with E.O. . 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. 10, 1972, 23 U.S.T. 2d 161 (D.D.C. It does not require any delegation from Congress other than the delegations to the Secretary already included in the terms of the statute. Many of these commenters requested an extended comment period. on Foreign Affairs, 64th Cong. . Moreover, the M-Opinion, which provided the original basis for this rulemaking, has been publicly available for more than 2 years. 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. 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. at 1581 (referencing S. Rep. No. 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. Tribal representatives were allowed to ask questions and seek clarifications. . The Service must consider how its proposed interpretation is consistent with that diplomatic exchange and seek Canada's views on the Service's new interpretation in light of that exchange. The preamble to this regulation explains the correct context for that language and its relevance to whether the MBTA prohibits incidental take. Therefore, the State requested that the short and long-term impacts of the proposed rule change be fully and accurately evaluated in the EIS, and that there be at least a 60-day comment period after the draft EIS is published in order to facilitate a thorough public review. documents in the last year, 658 In seeking to take a broader view of congressional purpose, the Moon Lake court looked to other contemporary statements that cited the destruction of habitat, along with improvements in firearms, as a cause of the decline in migratory bird populations. The Flyways noted that there was no advance notice of rulemaking to assess the implications of the proposed rule. Table 3Crude Petroleum and Natural Gas Extraction NAICS 21111: Employment Sizes and Sales1. 703-712): prohibits the take or attempt to take any parts of a migratory bird, including its nest, eggs, or young. It is simply one tool in what must be a multifaceted approach. 703(a). Under the Regulatory Flexibility Act (5 U.S.C. 668a-d, 703-712, 742a-j-l, 1361-1384, 1401-1407, 1531-1543, 3371-3378; 18 U.S.C. of the issuing agency. It is not part of the official APA rulemaking process or docket and plays no part in the agency's ultimate decision. . on Every effort shall be made by the Contractor not to disturb any nests with eggs or young. The degree to which these small businesses may be impacted by the rule is variable and is dependent on location and choice. Infeasible to net pits larger than 1 acre due to sagging. 1311 (Feb. 7, 1936) (Mexico Convention). 04/17/2023, 211 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. The clause proposed by the commenter would be inconsistent with our interpretation of the Act and would essentially add a requirement to the MBTA. We refer the commenter to the EIS for analysis and discussion of the environmental impacts of the proposal and reasonable alternatives. Response: The commenter misconstrues our interpretation of the MBTA's criminal misdemeanor provision in section 6. These are unfortunately realities of modern life and beyond the scope of the MBTA. Cal. The replacement timeline for netting is also variable because hurricanes, strong winds, and strong sun all have deleterious impacts on nets. See Mahler, 927 F. Supp. The scope of liability under an interpretation of the MBTA that extends criminal liability to all persons who kill or take migratory birds incidental to another activity is hard to overstate, CITGO, 801 F.3d at 493, and offers unlimited potential for criminal prosecutions. Brigham Oil, 840 F. Supp. 13186 remains in place and is a valuable tool for Federal agencies to work cooperatively to implement bird conservation strategies within their agency missions. Due to the biological and behavioral characteristics of some migratory bird species, destruction of their nests entails an elevated risk of violating the MBTA. The commenters noted that despite efforts to prevent incidental take, such take is not one-hundred-percent preventable and criminalizing incidental take does not advance conservation efforts. We have determined that this rule regarding the take of migratory birds will have no effect on species listed under the provisions of the ESA. Thus, we are simply interpreting the existing language and not amending the statute or altering statutory language in this regulation. 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. This approach effectively leaves otherwise lawful and often necessary businesses to take their chances and hope they avoid prosecution, not because their conduct is or even can be in strict compliance with the law, but because the government has chosen to forgo prosecution. Id. We conducted the NEPA analysis at the appropriate time to analyze the environmental effects of this rulemaking to codify that interpretation. It was not until Missouri v. Holland in 1920 that the Court, relying on authority derived from the Migratory Bird Treaty (Canada Convention) under the Treaty Clause of the U.S. Constitution, definitively acknowledged the Federal Government's ability to regulate the taking of wild birds. Reading the MBTA to capture incidental takings could potentially transform average Americans into criminals. For these reasons, this rule is unlikely to affect a significant number of small entities. . The proposed rule would largely make the statute inoperable, thus violating its congressional intent by removing its purpose. In accordance with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and the Department of the Interior's manual at 512 DM 2, we considered the possible effects of this rule on federally recognized Indian Tribes. 105-26 (May 5, 1997) (authorizing indigenous groups to harvest migratory birds and eggs throughout the year for subsistence purposes). documents in the last year, by the Centers for Medicare & Medicaid Services Rather, it should extend that comment period by 45 days or more. The States voiced concerns that this rule would increase their species-management burden substantially as further declines in migratory bird populations could result in additional management requirements and protections for declining species, including additional listings under State endangered species protection laws implemented by State fish and wildlife agencies. In this rulemaking, the Service describes these various protections, but does not rely on them to address incidental take of migratory birds in the absence of MBTA protection. ., 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). 2d 1070, 1075-76 (D. Colo. 1999) (suggesting that the Ninth Circuit's ruling in Seattle Audubon may be limited to habitat modification or destruction). Instead, the action was directed at protecting the farmer's crops from the birds, but not physically possessing or controlling the birds in any way other than killing them. Regarding the comments from the Government of Canada, the Service identified the impacts to migratory birds to the extent it was able in the final EIS, based on the information available. As a matter of both law and policy, the Service hereby adopts the conclusion of M-37050 in a regulation defining the scope of the MBTA. However, States may decide to expend resources for conservation and recovery of these species due to this rulemaking. However, there needs to be language that allows for the prosecution of individuals who are grossly negligent. . High variability in cost and need to retrofit power poles. We agree that strict liability applies to misdemeanor violations of the MBTA. Several Tribes stated that they have no record of receiving any communication or outreach from the Service or DOI regarding the proposed regulation revisions or associated draft EIS, much less an invitation to consult on either. 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. A takings implication assessment is not required. . In the absence of national protection against incidental take, each State may seek to enforce or embolden existing State rules, thereby creating additional regulatory uncertainty for industry. While statutes do not have to be drafted with `mathematical certainty,' they must be drafted with a `reasonable degree of certainty.' 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. Under the ESA, we have determined that this rule regarding the take of migratory birds will have no effect on ESA-listed species. (4) We reserve the right to suspend or revoke the authority of any agency or individual to undertake Those who engage in such activity and who accidentally kill a protected migratory bird or who violate the limits on their permits may be charged with misdemeanors without proof of intent to kill a protected bird or intent to violate the terms of a permit. 10.13. Response: The Service did not collude with any stakeholders, industry or otherwise, on the contents of the proposed rule before it was published in the Federal Register. E.O. at 1581 (Many other statutes enacted in the intervening years also counsel against reading the MBTA to prohibit any and all migratory bird deaths resulting from logging activities in national forests. should verify the contents of the documents against a final, official 78 FR 65,844, 65,845 (Nov. 1, 2013); see also 50 CFR 10.13 (list of protected migratory birds); Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 FR 30032, 30033 (May 26, 2015) (Of the 1,027 currently protected species, approximately 8% are either listed (in whole or in part) as threatened or endangered under the Endangered Species Act (ESA) (16 U.S.C. 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. Its creation was one of the National Audubon Society's first major victories, and in the years since its enactment, the MBTA has saved millions, if not billions, of birds. Response: In the draft EIS, we considered an alternative under which the Service would promulgate a regulation defining what constitutes incidental take of migratory birds and subsequently establish a regulatory general-permit framework. A draft EIS, issued subsequent to the proposed rule on June 5, 2020, analyzed various alternatives, some of which were discussed in the public webinars conducted as part of the NEPA scoping process. Of the five referenced verbs, threepursue, hunt, and captureunambiguously require an action that is directed at migratory birds, nests, or eggs. 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. These efforts would require increased expenditure of funds, but would not constitute direct compliance costs. Birds that nest on the ground in sandy or rocky areas are particularly difficult to see and identify, as are birds that nest in trees cavities or holes in the ground. Just over 20 years earlier, the Supreme Court in Geer had ruled that the States exercised the power of ownership over wild game in trust, implicitly precluding Federal regulation. "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. M-37050 thoroughly examined the text, history, and purpose of the MBTA and concluded that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions that are directed at migratory birds, their nests, or their eggs. Response: The proposed rule does not directly affect Natural Resource Damage assessments for accidents that have environmental impacts because statutory authorities that provide the basis for that program do not rely on the MBTA. The commenter called for the Office of Information and Regulatory Affairs to review the justification for consistency with these Executive Orders. 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. Under the new interpretation, this is no longer the case. The operative verbs (pursue, hunt, take, capture, kill) are all affirmative acts . . Response: The Service agrees with this comment. Prior to the publication of the proposed rule, the Service held a NEPA scoping webinar on March 16, 2020, that we allowed only Tribal members to attend, with the sole purpose of informing Tribes of the proposed action. Moon Lake, 45 F. Supp. Thus, it does not rely on the statutory language presented by the commenter. 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. 4647. documents in the last year, 439 We will continue to work with any entity that seeks to reduce their impacts to migratory birds to achieve conservation outcomes. As Table 6 shows, the cost of pre- and post-construction bird surveys is unknown because data are not publicly available and public comments were not received to estimate costs. Thus, in combination with the already significant population declines of many species, the proposed rule will almost certainly result in the need to increase the number of bird species listed under the Endangered Species Act (ESA) and increase the risk of extinction. 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