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DOI revises Incidental Take of Migratory Birds

On Dec. 22, 2017, the U.S. Department of the Interior (DOI) Solicitor’s Office issued a revised interpretation (M-37050) that concludes that the Migratory Bird Treaty Act’s (MBTA) does not prohibit the incidental taking of migratory birds.  DOI now reads the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing or attempting to do the same as applying only to “affirmative actions that have as their purpose the taking or killing of migratory birds, their nests or their eggs”.  The opinion is significant because it reverses DOI’s prior interpretation of the MBTA as prohibiting incidental taking or killing of migratory birds.  Previously the DOI viewed the potential scope of liability under the MBTA as “virtually unlimited” since the activities that can take a protected bird and the list of protected birds are extensive.  Because the MBTA is a strict liability criminal statute (meaning that a violation can occur regardless of whether the violator acted with intent), the memorandum will likely reduce potential criminal exposure on project developers and operators.