2010) (concluding that under an incidental take interpretation, [t]he actions criminalized by the MBTA may be legion, but they are not vague). Additional States may create new regulations to clarify that they have jurisdiction to regulate or otherwise oversee incidental take of migratory birds. on FederalRegister.gov Thirteen States (Illinois, Arkansas, Oklahoma, Texas, North Dakota, South Dakota, Nebraska, Montana, Wyoming, Colorado, Utah, New Mexico, and California) have regulations governing the treatment of oil pits such as netting or screening of reserve pits, including measures beneficial to birds. 50 CFR 10.12. The commenters noted that Congress could have clarified any objection to the enforcement of incidental take but did not. See Lilley & Firestone at 1181 (In the early 1970s, United States v. Union Texas Petroleum [No, 73-CR-127 (D. Colo. Jul. 1311, and Agreement Supplementing the Agreement of February 7, 1936, U.S.-Mex., Mar. Comment: One commenter in support of the proposed rule noted that there are other statutes that protect birds, including NEPA; industry would still have to comply with some of these laws and thus birds would benefit. . Congress and the executive branch understood this fact a century ago when it signed the 1916 treaty and passed the MBTA, even in the midst of World War I. The Service has provided three opportunities to submit comments through the scoping notice, the proposed rulemaking, and the publication of the draft EIS. The text and purpose of the MBTA indicate that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same only criminalize actions that are specifically directed at migratory birds, their nests, or their eggs.Start Printed Page 1135. Following the Wind Energy Guidelines has become industry best practice and would likely continue. Since the Small Business Size Standard is less than 1,250 employees, we assume all businesses are small. at 375. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's Tribal consultation policy and have determined that this rule may have a substantial direct effect on federally recognized Indian Tribes. There is concern from the commenters that the impact of this proposed rule will be a long-term loss of data and oversight of industrial impacts to avian species. . See Griffin v. Oceanic Contractors, 458 U.S. 564, 575 (1982) (interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available); see also K Mart Corp. v. Cartier, 486 U.S. 281, 324 n.2 (1988) (Scalia, J. concurring in part and dissenting in part) (it is a venerable principle that a law will not be interpreted to produce absurd results.). documents in the last year, 37 In addition, Federal agencies are required to evaluate their impacts to the environment under NEPA. Contrary to the suggestion of the courts in Moon Lake and Apollo Energies that principles of proximate causation can be read into the statute to define and limit the scope of incidental take, the death of birds as a result of activities such as driving, flying, or maintaining buildings with large windows is a direct, reasonably anticipated, and probable consequence of those actions. It was viewed 367 times while on Public Inspection. The Service also asked for and provided discussion on what extent industry would continue to implement best practices when there is no incentive to do so. Comment: Multiple commenters presented arguments that the Service has misquoted the provisions of the MBTA and that the proposal does not address the statutory authority in section 3 to authorize take of migratory birds that would otherwise violate the statute, which the commenters contend is the source of the Secretary's authority to implement the statute. and 25% are designated (in whole or in part) as Birds of Conservation Concern (BCC).). Smith v. Goguen, 415 U.S. 566, 572-73 (1974). Every effort shall be made by the Contractor not to disturb any nests with eggs or young. Major Federal actions include policy changes like M-Opinion 37050. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Newton County; Seattle Audubon. If the purpose of the referenced activity were specifically to remove active bird nests, then that activity would still be a violation of the MBTA and a permit would be required before any removal could lawfully proceed. Jerome Ford, Assistant Director, Migratory Birds, at 202-208-1050. 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. 2509 (2002), reprinted in 16 U.S.C.A. This approach has long-term financial benefit as it focuses on prevention rather than reparations in the future. See U.S. offers a preview of documents scheduled to appear in the next day's United States v. Rollins, 706 F. Supp. 99-445, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. 01/05/2021 at 11:15 am. Whether Congress deliberately avoided more broadly changing the MBTA or simply chose to Start Printed Page 1140address a discrete problem, the most that can be said is that Congress did no more than the plain text of the amendment means. Id. The commenter is essentially proposing adopting an extra-hazardous activity requirement as a proxy for negligence or gross negligence. Response: The Service has fulfilled the commenter's request through the publication of a draft EIS, which analyzed a no action alternative and two action alternatives. As a result of these cases, the Federal Government is clearly prohibited from enforcing an incidental take prohibition in the Fifth Circuit. Even assuming that the text could be subject to multiple interpretations, courts and agencies are to avoid interpreting ambiguous laws in ways that raise constitutional doubts if alternative interpretations are available. 20080 Before the House Comm. . This rulemaking will have no effect on those species. The Department's Principal Deputy Solicitor, exercising the authority of the Solicitor pursuant to Secretary's Order 3345, determined in M-37050 that the statute as written does not prohibit incidental take. under the Endangered Species Act, or any other bird species protected under the Migratory Bird Treaty Act, to the Fish and Wildlife Service Ecological Services Office for the State or location in which the take occurred. 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. The proposal would essentially be adding language to the MBTA given our interpretation that it does not prohibit incidental take. Response: The Service takes its Tribal trust responsibilities seriously and completed government-to-government consultation when requested. Instead, the opinion presumed that the lack of a mental state requirement for a misdemeanor violation of the MBTA equated to reading the prohibited acts kill and take as broadly applying to actions not specifically directed at migratory birds, so long as the result is their death or injury. The commenters suggested that the Service modify the proposed rule to include a provision where incidental take resulting from reckless negligent behavior is considered a violation (i.e., gross negligence). In addition, a letter was sent through our regional offices to invite Tribes to engage in this proposed action via the government-to-government consultation process. Justice Gorsuch in Bostock was quite clear that legislative intent is only irrelevant if the language of the statute is plain, as he found the applicable language of the Civil Rights Act to be. Prosecutions for incidental take occurred in the 1970s without any accompanying change in either the underlying statute or Service regulations. . . The word protection occurs in its first sentence. Response: Congress's primary concern when enacting the MBTA in 1918 was hunting, poaching, and commercial overexploitation of migratory birds. The Act provides that, subject to and to carry out the purposes of the treaties, the Secretary of the Interior is authorized and directed to determine when, to what extent, and . 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. Comment: Some commenters suggested that the interpretation of the MBTA set forth in the proposed rule is flawed and does not account for the mission of the Department and the Service. 315, 116 Stat. Response: The Service does not agree that the MBTA is the only mechanism to achieve bird conservation. for Biological Diversity v. Pirie, 191 F. Supp. 703 mean `physical conduct of the sort engaged in by hunters and poachers. The majority of these birds are federally protected under the Migratory Bird Treaty Act, which protects the birds, their nests, eggs, and feathers. Response: The enforcement of the MBTA is just one part of how the Service works with others to conserve migratory birds. We disagree that this rulemaking will have a substantial impact on migratory bird populations when compared to prior agency practice. Regarding enforcement of Federal law, the Department and the Service are obligated to interpret and follow the law established by Congress. Learn more here. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. Comment: Multiple commenters felt the manner in which this proposed rulemaking was announced on January 30, 2020, by the Service's Office of Public Affairs was improper and a violation of the APA (Pub. 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. . 2d at 1213. We will also continue to monitor bird populations in partnership with State wildlife agencies and other stakeholders. Because the proposed alternative would have established a minimum mens rea of gross negligence before the Service could enforce the statute's misdemeanor provision, it would not be legally defensible. . The cases cited by the court in footnote 13 interpreting the term kill do so in the context of criminal homicide, which unsurprisingly interprets kill in the broader sense. does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisionsit does not, one might say, hide elephants in mouseholes. Whitman v. Am. on This definition still requires law enforcement to prove intent, which can be just as difficult to prove, just as legally uncertain, and equally burdensome to law enforcement. The commenter notes there is little mention in either notice of biological impacts or assessment of bird species protected by the Act. 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. The Service has sought to involve and consult with Tribes regarding this rulemaking. Interagency review limited to Federal agencies occurred prior to issuance of the proposed rule under procedures required by Executive Order Start Printed Page 114512866 and implemented by the Office of Management and Budget. A, Title III, Sec. . (emphasis added)). . (quoting SEC v. Nat'l Sec., Inc., 393 U.S. 453, 466 (1969)); Beecham v. United States, 511 U.S. 368, 371 (1994) (the fact that several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well). The prior M-Opinion posited that amendments to the MBTA imposing mental state requirements for specific offenses were only necessary if no mental state is otherwise required. . The President of the United States manages the operations of the Executive branch of Government through Executive orders. Many other methods of hunting, capturing, pursuing, taking, or killing birds no doubt exist, and that is precisely the point. The Service also notes that the motivation to implement conservation measures to mitigate harm to migratory birds is not simply driven by the threat of enforcement. Because entering the nesting area can result in raptors leaving their nests, eggs, and young, such action is considered a disturbance and prohibited by Federal and some state laws. on Comment: Several commenters stated that some estimates of bird mortality used in the rule are more than a decade old and out of date. This failure to address threats beyond harvesting undermines the United States' commitment under the amended Canada treaty to ensure the long-term conservation of shared migratory bird species. There is nothing in this legislation that authorizes the government to pursue incidental takings charges in other contexts. Comment: One commenter requested that the Service remember their treaty obligation to protect birds that are shared with other countries that as independent nations could not ensure the protection of species that migrate across borders. 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. Individual States therefore rely on Federal law (and the international treaties implemented by Federal law) to protect their own bird populations when individual birds migrate beyond their boundaries. The Service is the Federal agency delegated the primary responsibility for managing migratory birds. These potentially absurd results are not ameliorated by limiting the definition of incidental take to direct and foreseeable harm as some courts have suggested. In any case, each Federal agency should continue to comply with the Executive Order, and each agency with an MOU should continue to carry out that MOU, including any conservation measures that reduce incidental take, even though that take does not violate the MBTA. . The provisions of the 1916 Canada Convention authorize only certain circumscribed activities specifically directed at migratory birds. . If not, where does the Service anticipate such needed funds will originate? However, the term kill can be read purely as an active verb, meaning, to put to death; to slay. When contrasted with the more passive definition as the general term for depriving of life, the difference is clear. This table of contents is a navigational tool, processed from the This EIS was open for public comments, and comments focused on these analyses are addressed within the final EIS.
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