tuna
NES Member
Solicitor's Opinions
Looks like we're moving in the right direction again. Nice to see rules going back to their intent, and not just a way to jam up citizens.
Today, the Department of the Interior Solicitor’s Office issued a binding opinion that will change the way the U.S. Fish and Wildlife Service implements and enforces the Migratory Bird Treaty Act (MBTA).
The Department’s new “M-Opinion” reverses an M-Opinion on the MBTA issued by the previous administration in January 2017. The new opinion returns our interpretation of the law’s provisions to that of its creators nearly a century ago.
The Migratory Bird Treaty Act was enacted by Congress in 1918 to solve a very specific problem – the unregulated slaughter and commercial sale of dozens of species of migratory birds for their meat, eggs and feathers. As a result of the demand for feathers to be used in hats and other clothing, as well as a voracious demand for their meat and eggs by consumers, many species were on the brink of extinction. The MBTA was designed to halt this deliberate, commercialized slaughter.
However, beginning in the 1970s began more broadly interpreting the law’s provisions to apply to any take of migratory birds – deliberate or otherwise. This had the effect of potentially criminalizing many day-to-day, otherwise legal activities that might inadvertently kill, injure or disturb any of more than 800 species of birds covered by the law, which could include cutting down a tree with a bird nest in it, or owning a house with windows that are struck by birds, or driving a car involved in a fatal collision with a bird.
Over the past four decades, the Service has relied on prosecutorial discretion to enforce the MBTA for this kind of incidental take. But, as a result, the law has been unevenly applied. Further, because t courts across the country have disagreed on whether the MBTA applies to incidental take we have had to create a patchwork of differing enforcement in various jurisdictions. As a result, industries have been forced to operate without regulatory predictability, hampering their operations, financing and profitability.
The new M-Opinion returns the MBTA to its original intention– focusing enforcement on deliberate killing, injury and commercialization of migratory birds. It will enable us to focus our law enforcement efforts on criminals who poach, traffic and deliberately harm our native migratory bird heritage. Further, we will be able to concentrate on partnership-focused migratory bird conservation that will ensure sustainable populations of waterfowl and other migratory birds nationwide for generations to come.
We will begin working on regulations that implement this opinion in 2018. I also anticipate a Secretarial Order codifying the opinion to be released in the coming weeks. In the meantime if you get any media, congressional or other outside inquiries please refer them to Headquarters External Affairs.
Greg Sheehan
Looks like we're moving in the right direction again. Nice to see rules going back to their intent, and not just a way to jam up citizens.
Today, the Department of the Interior Solicitor’s Office issued a binding opinion that will change the way the U.S. Fish and Wildlife Service implements and enforces the Migratory Bird Treaty Act (MBTA).
The Department’s new “M-Opinion” reverses an M-Opinion on the MBTA issued by the previous administration in January 2017. The new opinion returns our interpretation of the law’s provisions to that of its creators nearly a century ago.
The Migratory Bird Treaty Act was enacted by Congress in 1918 to solve a very specific problem – the unregulated slaughter and commercial sale of dozens of species of migratory birds for their meat, eggs and feathers. As a result of the demand for feathers to be used in hats and other clothing, as well as a voracious demand for their meat and eggs by consumers, many species were on the brink of extinction. The MBTA was designed to halt this deliberate, commercialized slaughter.
However, beginning in the 1970s began more broadly interpreting the law’s provisions to apply to any take of migratory birds – deliberate or otherwise. This had the effect of potentially criminalizing many day-to-day, otherwise legal activities that might inadvertently kill, injure or disturb any of more than 800 species of birds covered by the law, which could include cutting down a tree with a bird nest in it, or owning a house with windows that are struck by birds, or driving a car involved in a fatal collision with a bird.
Over the past four decades, the Service has relied on prosecutorial discretion to enforce the MBTA for this kind of incidental take. But, as a result, the law has been unevenly applied. Further, because t courts across the country have disagreed on whether the MBTA applies to incidental take we have had to create a patchwork of differing enforcement in various jurisdictions. As a result, industries have been forced to operate without regulatory predictability, hampering their operations, financing and profitability.
The new M-Opinion returns the MBTA to its original intention– focusing enforcement on deliberate killing, injury and commercialization of migratory birds. It will enable us to focus our law enforcement efforts on criminals who poach, traffic and deliberately harm our native migratory bird heritage. Further, we will be able to concentrate on partnership-focused migratory bird conservation that will ensure sustainable populations of waterfowl and other migratory birds nationwide for generations to come.
We will begin working on regulations that implement this opinion in 2018. I also anticipate a Secretarial Order codifying the opinion to be released in the coming weeks. In the meantime if you get any media, congressional or other outside inquiries please refer them to Headquarters External Affairs.
Greg Sheehan
