In January 2017, the outgoing Solicitor of the Department of the Interior issued a memorandum which reaffirmed the Department’s “long-standing interpretation of the Migratory Bird Treaty Act that the MBTA prohibits the incidental taking of migratory birds.” In December 2017, following the change in administrations, the Department’s Primary Deputy Solicitor, exercising the authority of the Solicitor, issuing a new memorandum which withdrew and replaced the January 2017 interpretation. In response to this change in policy, the Fish and Wildlife Service issued new guidance as to what now constitutes a “prohibited take.” This change in policy has been challenged by several states, the National Audubon Society and the National Resource Defense Council. On July 31, 2018, the U.S. District Court for the Southern District of New York consolidated these challenges and denied the bulk of the Government’s motion to dismiss these petitions for review. This decision is National Resources Defense Council, et al. v,. U.S. Department the Interior.
The Government argued that none of the plaintiffs had standing to maintain these lawsuits; the December 2017 opinion was not a “final agency action” for purposes of judicial review; the matter was not ripe for review at this time; and that the Department was not obliged to comply with the notice and comment requirements of the Administrative Procedure Act (APA). The court rejected these arguments except for the assertion that the issuance of this opinion violated the APA. Regarding the standing of the State of New York, the court pointed out that under the laws of the state of New York, the State “owns all game and wildlife in the state” not held by private interests. As a result, this proprietary interest of the state constitutes “injury in fact” to support its standing. Also, the court held that, for now, the Audubon Society enjoys standing by virtue of the understandable interests its members have in enjoying migratory birds. However, more concrete facts may be required to preserve it standing later in this litigation. Finally, the case is ripe for review and judicial decision, but the Audubon Society’s claim that the APA has been violated was dismissed because the APA does not apply to interpretive decisions issued by federal administrative agencies.