On December 22, 2017 the Department of the Interior (“DOI”) issued its revised interpretation of the Migratory Bird Treaty Act’s (“MBTA”) prohibition on the take of migratory birds. Opinion M-37050 is the result of the DOI Solicitor’s Office review of the MBTA’s prohibition on take. It is a complete reversal of Opinion M-37041 which had concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.” No longer the case.
Opinion M-37050 concludes that “consistent with the text, history, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.” (emphasis added). Stated plainly, if the take of a migratory bird, its nest, or eggs that is incidental to an activity that is lawful, it does not violate the MBTA. And that means that the MBTA’s criminal provisions do not apply either.
Opinion M-37050 impact industries that have wrestled with MBTA compliance, particularly those facing potential incidental take of migratory birds.
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