On December 22, 2017, the USDOI issued Memorandum M-37050. The USDOI now concludes that the incidental taking of migratory birds is no longer prohibited under the Migratory Bird Treaty Act (“MBTA”). This is a reversal of opinion from the prior interpretation that did prohibit the incidental taking of migratory birds, that is industrial or commercial activity that accidentally caused the death of a migratory bird. This is potentially a big development in the oil and gas industry.
While this revised interpretation may reduce MBTA liability, does it really change anything? Probably only the USDOI approach to enforcement. What M-37050 does is follow the interpretation of the MBTA that has been used several Court of Appeals (the 5th, 8th, and 9th Circuits). United States v. CITGO Petroleum Corporation, 801 F.3d 477 (5th Cir. 2015); Newton County Wildlife Association v. United States Forest Service, 113 F. 3d 110 (8th Cir. 1997); Seattle Audubon Society v. Evans, 952 F.2d 297,303 (9th Cir. 1991). Two Courts of Appeals (the 2nd and the 10th Circuits) take an opposing approach. United States v. FMC Corporation, 572 F.2d 902 (2d Cir. 1978); United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010).
Will those two Courts of Appeal fall in line? Not unless there is a prosecution within a court under the jurisdiction of the Second and Tenth Circuits. Under the current administration, that is unlikely to happen.
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