For 100 years, the Migratory Bird Treaty Act (MBTA) has protected nearly 1000 bird species in the United States against being “taken” or killed except under prescribed circumstances. This statute prohibits hunters from intentionally killing birds without a permit, but has also been interpreted by courts and the Interior Department to prohibit incidental taking – the unintentional destruction of birds or nests through some instrumentality or activity like spraying pesticides or the erection of wind turbines. The MBTA is a strict liability statute. If a covered bird dies then misdemeanor liability is established despite the efforts or good will of the defendant.
The MBTA itself is silent about whether intent is a necessary element of the misdemeanor, but Congress has amended the statute several times without correcting the prevailing judicial interpretation that intent to harm birds is not required. In fact, the amendments carved out special areas where intent was necessary, strongly implying that in all other areas intent was unnecessary. This interpretation was formally adopted by the Interior Department in a legal memo issued in the waning days of the Obama Administration.
However, the Trump Administration abruptly reversed course in 2017, eliminating the enforcement of the MBTA with respect to incidental taking. This was the result of intense lobbying by oil and gas donors to Trump’s campaign. Two of the largest enforcement actions claiming that birds were taken by unintentional industrial activity had been against the oil industry.
Scientists believe that North America has lost 3 billion birds in the last 50 years due to climate change, habitat loss and collisions with man-made structures. To address the problem Deb Haaland, Secretary of the Interior, recently announced that the Trump rule would be rescinded and prosecutions would once again be possible for companies that unintentionally take birds.
But it is hard to escape the sense that interpreting a statute broadly to create potential (and actual) business liability without considering the intent of the business, or the efforts of the business to comply, is asking for trouble. Businesses caught up in MBTA enforcement have been frustrated and believe they have been treated unfairly. The Biden Administrations new policy will consider a new permitting system so that companies are not penalized for unintentional bird kills if they have taken reasonable precautions to avoid the harm.