Interior Withdraws Solicitor Opinion Interpreting the Migratory Bird Treaty Act
On March 8, 2021, the Principal Deputy Solicitor of the Interior issued a memorandum withdrawing Solicitor’s Opinion M-37050, which had interpreted the Migratory Bird Treaty Act (MBTA) as only prohibiting affirmative actions that purposefully take or kill migratory birds, their nests, or their eggs, and not prohibiting incidental taking or killing.
The March 8 memorandum marks the latest reinterpretation of the MBTA by the Solicitor’s Office. In the last days of President Barack Obama’s administration, the Solicitor issued Opinion M-37041 – Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 10, 2017). This 30-page opinion 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.”
Solicitor’s Opinion M-37041, however, enjoyed a short life. On February 6, 2017, the incoming administration of President Donald Trump suspended Solicitor’s Opinion M-37041. On December 22, 2017, the Principal Deputy Solicitor issued Solicitor’s Opinion M-37050, which permanently withdrew and replaced Solicitor’s Opinion M-37041. Spanning 41 pages, Solicitor’s Opinion M-37050 concluded that the MBTA’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.”
The United States District Court for the Southern District of New York, however, found this conclusion to be inconsistent with the language of the MBTA. The court vacated Solicitor’s Opinion M-37050 in its entirety. Natural Res. Defense Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020). The Biden administration did not pursue an appeal of this decision.
The March 8, 2021 memorandum cited the litigation over Solicitor’s Opinion M-37050 as justification for permanently revoking and withdrawing it. The memorandum also cited concerns raised by the Government of Canada as to whether M-37050 is consistent with one of the treaties underlying the MBTA. Notably, the memorandum did not reinstate Solicitor’s Opinion M-37041 or otherwise replace Solicitor’s Opinion M-37050.
The withdrawal and revocation of Solicitor’s Opinion M-37050 coincides with the delayed effective date a final rule that formalized the interpretation of “take” set forth in Solicitor’s Opinion M-37050. The U.S. Fish and Wildlife Service (USFWS) published this final rule on January 7, 2021, and it was scheduled to take effect on February 8, 2021. On February 9, 2021, the USFWS published an announcement that it would delay the effective date of this rule until March 8, 2021, and seek additional public comment on it.
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