Department of the Interior to Reverse Trump-ERA Incidental Take Rule Under the Migratory Bird Treaty Act

On Friday, May 7, 2021, the Department of the Interior (DOI) officially published a proposal in the Federal Register seeking to revoke the Trump Administration’s final rule “defining the scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in the injury or death of migratory birds[.]” 86 FR 24573. The Biden administration has already delayed the effective date of the Trump rule until March 8, 2021. This latest move further underscores the new Administration’s avowed commitment to environmental protection.

As explained in our prior blog post, the Trump-era rule was adopted in the final days of the that administration. The rule eliminated criminal penalties for incidental (accidental) take of migratory birds, thereby resolving decades of uncertainty caused by a Federal Circuit split as to whether the MBTA applied to unintentional harm. The rule also undid recent DOI precedent under which the agency had discretion to prosecute individuals and companies for accidentally killing migratory birds. The Trump rule was the subject of intense controversy, and a related DOI opinion was overturned in Federal Court. The Trump rule will be in effect until the proposed revocation is adopted. As such, any incidental take in the intervening period will likely be outside prosecutorial reach.

DOI is requesting public comments on its proposed reversal until June 7, 2021. Arnold & Porter attorneys will continue to closely monitor developments in this space.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.