Does the Migratory Bird Treaty Act prohibit incidental takings and killings of migratory birds? Following the U.S. Department of the Interior's issuance of contradictory legal opinions under the Obama and Trump administrations in 2017, and an Aug. 11 decision in Natural Resources Defense Council v. Department of the Interior issued by U.S. District Judge Valerie Caproni of the U.S. District Court for the Southern District of New York, the answer is even more uncertain.
While the DOI is poised to issue a final rule clearing up this uncertainty and solidifying its position that the Migratory Bird Treaty Act does not prohibit incidental takings, current interpretations of the act vary from circuit to circuit.
Whether the act imposes liability for incidental takings is an important question for those engaged in a broad range of industrial activities — such as petroleum refineries, airports and wind power generators — whose normal business operations may result in the inadvertent killing of migratory birds.
