On December 22, 2017, the Office of the Solicitor of the Department of the Interior issued a Memorandum re: The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, which substantially modifies the Department’s policy regarding the criminal enforcement of the Migratory Bird Treaty Act’s (MBTA) prohibition against the incidental taking or killing of migratory birds. In addition, this Memorandum withdraws a contrary opinion of the Solicitor’s Office that was issued on January 10, 2017 – Memorandum re: Temporary Suspension of Certain Solicitor M-Opinions Pending Review. This could be a very important change for the energy industry.
The opinion concludes by stating that:
“The text, history and purpose of the MTBA demonstrate that it is a law limited in relevant part to affirmative and purposeful actions, such as hunting and poaching, that reduce migratory birds and their nests and eggs, by killing or capturing, to human control… Interpreting the MTBA to criminalize incidental takings raises serious due process concerns and is contrary to the fundamental principal that ambiguity in criminal statutes must be resolved in favor of defendants.” Continue reading