What’s Good for the Goose May not be Good for the Gander: A Bird’s Eye View of the Emerging Incidental Take Permit Program Under the Migratory Bird Treaty Act

What’s Good for the Goose May not be Good for the Gander: A Bird’s Eye View of the Emerging Incidental Take Permit Program Under the Migratory Bird Treaty Act

Matthew Arnold

As bitter winds rip across the Arctic tundra during the depths of winter, a small bird in the jungles of South America, no larger than a tennis ball, is preparing to make one of the most remarkable journeys on planet earth.[1] Within just two short months, this Gray-cheeked Thrush (Catharus minimus) will travel over four thousand miles from the Amazonian jungles to the alder thickets along the Arctic Circle in Canada.[2] Along the way, it will evade predators, overcome starvation and inconceivable exhaustion—all just to give birth to the next generation of these distant nomads.[3] Increasingly, however, these obstacles are not the greatest threat to the individual Thrush’s survival.[4] When this Gray-cheeked Thrush crosses into Texas, it must navigate its way through a maze of the largest wind farms in the world.[5] These wind turbines are formidable opponents to a small songbird, and they kill between 140,000 and 328,000 migratory birds annually.[6] In doing so, these renewable energy industries are coming into direct conflict with one of the nation’s oldest wildlife protection statutes.[7]

The Migratory Bird Treaty Act (MBTA) broadly makes it “unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, [or] kill . . . any migratory bird . . . .”[8] While the statute does not define “take,” the United States Fish and Wildlife Service (USFWS), the agency with primary enforcement jurisdiction under the Act, interprets the term as: “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.”[9] However, the definition of both the statute and its corollary regulation fail to clarify whether a particular scienter is a necessary element to violate the MBTA’s prohibitions.[10]

As a result, the federal circuit courts are split on whether an incidental take is subject to the strict liability prohibitions of the MBTA.[11] Absent a definitive ruling from the Supreme Court, industries that incidentally take protected species are left with little guidance about whether their operations will fall prey to the USFWS’s erratic enforcement regime.[12] However, in May 2015, the USFWS announced its “Notice of Intent” to promulgate a much-anticipated “Incidental Take Permit” under the MBTA.[13] The Incidental Take Permit program is aimed at providing a much-needed compliance certainty to regulated entities[14]—but at what cost?

This Note examines the viability of the USFWS’s four proposed strategies for implementing an Incidental Take Permit (ITP) program under the Migratory Bird Treaty Act and concludes by recommending a modified permit approach that balances the conservation purposes of the MBTA against the administrative burdens imposed by the statute. To fully illustrate the competing views under the MBTA, this Note opens by providing an overview of the MBTA’s creation and statutory language, as well as the treaties that form the underlying purpose of the Act. After a brief examination of the varying judicial interpretations that will govern post-promulgation challenges to this fledgling program, the Note weighs the advantages and disadvantages of the USFWS’s four recently proposed strategies for instituting an ITP program: (1) general conditional permits; (2) individual take permits; (3) MOU-based permitting; and (4) further development of voluntary guidance recommendations. Finally, the Note concludes by recommending a conditional permit program that includes regionally contingent monitoring programs and threshold take limits. By incorporating both components to the proposed rule, the ITP program will remain consistent with the MBTA and its animating treaties, as well as afford the USFWS the flexibility necessary to regulate the intersection between such a vast variety of species and industrial operators.

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Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

[1] Arthur Cleveland Bent, Life Histories of North American Thrushes, Kinglets, and Their Allies 188–99 (1949); Nat’l Audubon Soc’y, The Sibley Guide to Bird Life & Behavior 463–64 (Chris Elphick et al. eds., 2001).

[2] Bent, supra note 1, at 188–90, 197–99; Wang R. Yong & Frank R. Moore, Spring Stopover of Intercontinental Migratory Thrushes Along the Northern Coast of the Gulf of Mexico, 114 Auk 263, 264 fig. 1 (1997).

[3]  Paul Kerlinger, How Birds Migrate 91–93 (2d ed. 2009).

[4] Scott R. Loss, Tom Will, & Peter P. Marra, Estimates of Bird Collision Mortality at Wind Facilities in the Contiguous United States, 168 Biological Conservation 201–19 (2013).

[5] Top 10 Biggest Wind Farms, Power-Technology.com (Sept. 30, 2013), http://www.power-technology.com/features/feature-biggest-wind-farms-in-the-world-texas/.

[6] Loss et al., supra note 4, at 216.

[7] Andrew G. Ogden, Dying for a Solution: Incidental Taking Under the Migratory Bird Treaty Act, 38 Wm. & Mary Envtl L. & Pol’y Rev. 1, 8 (2013).

[8] Migratory Bird Treaty Act of 1916, 16 U.S.C. § 703(a) (2012).

[9] 50 C.F.R. § 10.12 (2016).

[10] Ogden, supra note 7, at 16.

[11] Compare United States v. FMC Corp., 572 F.2d 902, 907–08 (2d Cir. 1978) (holding that unknowingly poisoning birds constituted a take under the MBTA), and United States v. Apollo Energies, Inc., 611 F.3d 679, 690 (10th Cir. 2010) (finding that inadvertently killing birds coupled with proximate cause constituted a take under the MBTA), with Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 301–02 (9th Cir. 1991) (holding that logging in nesting areas constitutes an indirect and inadvertent action outside of the prohibitions of the MBTA), and Newton Cnty. Wildlife Ass’n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir. 1997) (“[I]t would stretch this 1918 statute far beyond the bounds of reason to construe it as an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds.”).

[12] Holland & Hart, Development of a Permit Program for Incidental Take of Migratory Birds 2–3 (2010).

[13] Migratory Bird Permits: Programmatic Environmental Impact Statement, 80 Fed. Reg. 30,032 (May 26, 2015).

[14] Id. at 30,034

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