Overview
Title
Regulations Governing Take of Migratory Birds
Agencies
ELI5 AI
The U.S. Fish and Wildlife Service made a new rule saying that people can only get in trouble for actions that are meant to harm birds or their eggs directly. This means if birds are accidentally hurt by humans while doing other things, those humans won't get into trouble under this rule.
Summary AI
The U.S. Fish and Wildlife Service has finalized a rule specifying the scope of the Migratory Bird Treaty Act (MBTA). The rule clarifies that the MBTA's prohibitions on actions like pursuing, hunting, capturing, or killing migratory birds apply only to deliberate actions directed at these birds, their nests, or their eggs. It explains that the incidental harm or death of birds resulting from activities not aimed at them is not covered under this law. This decision aims to provide legal clarity and reduce regulatory uncertainty for industries and individuals.
Abstract
We, the U.S. Fish and Wildlife Service (FWS, Service, we), define the scope of the Migratory Bird Treaty Act (MBTA or Act) as it applies to conduct resulting in the injury or death of migratory birds protected by the Act. We determine that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same, apply only to actions directed at migratory birds, their nests, or their eggs.
Keywords AI
Sources
AnalysisAI
The recent rule made by the U.S. Fish and Wildlife Service provides a specific interpretation of the Migratory Bird Treaty Act (MBTA), clarifying that its prohibitions apply exclusively to deliberate actions targeting migratory birds, their nests, or their eggs. This means that the incidental harm or death of birds resulting from activities not aimed at them is not prohibited under the MBTA. This ruling primarily aims to reduce regulatory uncertainty and provide legal clarity to various industries and individuals who might inadvertently impact bird populations through their activities.
Summary and General Overview
The document details the final rule that narrows the interpretation of the MBTA to include only actions intentionally directed at migratory birds. It effectively exempts unintended, incidental harm from regulatory oversight under this particular law. This rule marks a significant change from previous interpretations, which may have imposed liability for incidental takes of birds, meaning unintended harm as a result of otherwise lawful actions. The document discusses extensive legal, regulatory, and policy background to outline the rationale for this rule change.
Significant Issues and Concerns
One of the critical concerns raised by the rule is the ambiguity surrounding what constitutes intentional vs. incidental actions. This distinction might lead to confusion among stakeholders regarding compliance and could result in inconsistent enforcement or future legal challenges. Moreover, the document indicates that while this rule aims to provide clarity, it does not fully resolve existing legal disputes and could lead to further uncertainty, particularly given that there are ongoing appeals and a recent court decision vacating a related legal interpretation (M-37050).
There is also concern about the reliance on state laws to manage bird protection under this new rule. This approach could result in a patchwork of protections that varies significantly across state lines, potentially undermining consistent national protection for migratory birds.
Potential Impacts on the Public
For the general public, this rule may simplify understanding of what is legally permissible regarding activities that could affect migratory birds. Individuals and businesses no longer need to worry about incidental harm leading to legal repercussions under the MBTA. However, the broader environmental consequences may be hard to gauge, as the rule essentially reduces federal oversight over unintended harm to bird populations.
Impacts on Specific Stakeholders
Industries such as construction, energy production, and agriculture might benefit from reduced regulatory burdens under this rule. These sectors faced legal uncertainties and potential liabilities under the previous interpretations of the MBTA regarding incidental bird takes. They might now operate with more confidence, reducing costs associated with ensuring compliance with the MBTA.
Conversely, environmental organizations and advocates for bird conservation express concern that this rule reduces protections for migratory birds at a time when many species face declining numbers. They may perceive this rule as a retreat from longstanding conservation commitments, potentially impacting efforts to address other threats to bird populations, such as habitat destruction and climate change.
Conclusion
Overall, while the rule provides legal certainty and addresses some regulatory burdens for industries, it raises significant concerns about the scope of protections for migratory birds and potential inconsistencies in state-level governance. Additionally, the rule changes fundamental interpretations of an established law, which might lead to future legal challenges and debates about the long-term impacts on both industry practices and bird conservation efforts. The full implications of this rule will unfold over time, as stakeholders adjust to the new regulatory landscape and its real-world effects on migratory bird populations become clearer.
Financial Assessment
The Federal Register document concerning the "Regulations Governing Take of Migratory Birds" references financial aspects primarily concerning the cost implications for industries involved in activities like oil extraction. The references to financial aspects are primarily centered around compliance costs for businesses and potential economic impacts, both for individual small enterprises and for industries at large.
The document outlines specific costs associated with mitigation measures. For instance, it mentions that the cost of oil pit nets ranges from about $131,000 to $174,000 per acre. Most netted pits are identified as being between 1/4 to 1/2 acre in size. This detail implies that businesses needing to comply with bird protection measures in the past faced substantial financial outlays for equipment and installation.
The assumption underlying the document is that these businesses will experience economic benefits or at least neutral impacts because of deregulation, as they might choose to reduce or eliminate such compliance measures. However, the text provides limited data on the impact of these potential cost savings on small businesses specifically, which was pointed out as an issue in the document.
Economic impact analysis appears insufficiently detailed, particularly concerning small entities, despite claims in the document that the rule would not significantly impact a substantial number of these entities. The potential for financial benefit is cited, with the expectation that businesses currently implementing bird protection measures may choose to reduce efforts, thereby lowering expenses. However, the document fails to provide comprehensive data or expansion on how many businesses might actually incur these savings or the scale of these potential economic benefits.
The rule relies partly on the expectation that some industries will continue to self-regulate and implement bird mitigation measures voluntarily, without providing evidence or detailed analysis supporting this assumption. This reliance could lead to uneven financial impacts across industries and regions, particularly since the document suggests that financial protections might be inconsistent due to varying state laws.
In summary, while the document provides some insight into the financial implications of regulatory changes, such as reduced compliance costs, it lacks a detailed and comprehensive evaluation of how these changes will economically impact small businesses and the level of self-regulation likely to be undertaken by industries. The absence of detailed data leaves potential gaps in understanding whether the rule will indeed be economically beneficial, as claimed, especially in light of regional and sectoral differences in compliance requirements.
Issues
• The document's length and complexity make it difficult to digest without a structured overview or summary, especially for stakeholders not accustomed to legal and regulatory language.
• The rule's ambiguity around the definitions of 'take' and 'kill' may lead to confusion about what constitutes compliance, which could also lead to inconsistent enforcement or unintended legal challenges.
• There is a lack of detailed economic impact analysis on small entities. Although assertions are made that the rule is likely to be economically beneficial or neutral, the data presented for some industries remains insufficiently detailed.
• The document assumes that industries will continue to self-regulate to reduce bird takes without MBTA enforcement, but it does not provide a detailed analysis or evidence to support this assumption.
• The reliance on State laws to manage bird protection could result in inconsistent protections nationwide, leading to a regulatory patchwork that might not adequately address the protection of migratory birds.
• The document indicates significant changes to historical interpretations of the MBTA without fully addressing how this might align or conflict with existing international treaties related to bird protection.
• There is a risk of further legal challenges due to the rule's reliance on M-37050, an interpretation that has been recently vacated in court, without awaiting broader legal consensus or resolution of appeals.
• The document repeatedly references the removal of uncertainty as a primary benefit, yet acknowledges existing legal disputes, which continue to pose a risk of uncertainty for affected parties.
• Although various comments from agencies, Tribes, and other stakeholders are summarized, there is limited indication of how this feedback was explicitly used to influence the final ruling.
• The document contains numerous references to legal cases and interpretations that may not be easily understood by the general public or smaller entities without legal counsel.
• The final decision summary does not clearly address why the chosen alternative is environmentally beneficial compared to others, focusing primarily on legal interpretations and potential economic impacts.