document ew 01


1 Department United States Interior of the THE OF OFFICE SOLICITOR 20240 Washington , D.C. IN REFER REPLY TO 1 O 2017 JAN M-37041 Memorandum Fish and Wildlife Service Director, To: Solicitor From: Take Prohibited Under the Migratory Bird Treaty Act Incidental Subject: INTRODUCTION I. A wide array activities and infrastructure incidentally kill or "take " migratory birds . of human umbrella things that includes , among other " is an , human actions that kill wildlife. "Take term of the activity . Some the activity, but is not take" purpose is take results from an "Incidental that the activities and infrastructure that incidentally take migratory birds include of lines , power pesticide , conununication towers , oil and contaminant spills, oil waste pits , surface- application . In tailing fishing , and wind turbines , commercial many cases , simple, relatively ponds mining migratory on activities these of reducing impacts in effective proven have methods low-cost the Some examples include: replacing non-flashing warning lights on communication towers birds. of flashing ; marking with lines with bird diverters; implementing greater spacing power lights reduce insulators and other practices to powerpoles electrocution hazards of power lines; on fencing and netting waste pits; updating mining operations to eliminate the use of tailing ponds, reduce streamer longline fishing vessels to on seabird bycatch. employing lines and 1 killing or unauthorized migratory prohibits of taking (MBTA) Treaty Bird Migratory The Act long U.S Wildlife . The (FWS) has . Fish and recognized that this prohibition birds Service incidental taking and killing (which , for brevity , I refer to collectively as " incidental includes " take in with longstanding view , FWS Consistent that 2015 that it is considering ). announced development regulations to provide legal authorization of incidental take in circumstances in of 2 the take is consistent with the purposes which the MBTA. of The courts generally agreed with the FWS interpretation of the MBT A as prohibiting have 3 take. incidental , recently a few courts have erroneously construed the prohibition of However other " in MBTA as limited to hunting and "take forms of intentional taking of migratory the 1 16 U.S.C. 703-12. §§ 2 of its ; Programmatic Environmental Impact Migratory Bird , Notice Penn Intent, 80 Fed. Reg . 30 ,032 Statement (May 26 , 2015) . 3 I 0). g., United States v. A pollo En erg ie s, See , e. c., 611 F.3d 679 (I 0th Cir . 20 In

2 4 birds. of the confusion caused by the varying case law, the Solicitor's Office has Because closely with to comprehensively review the question worked FWS the of applies MBT whether A of the Interior's legal This incidental presents the Department memorandum to take. opinion analysis supporting incidental MBTA prohibits that FWS's interpretation the long-standing 5 take. analyzing below basis for FWS' s interpretation of the MBT A, the in turn the I explain detail in legislative history and text MBT A, the four treaties underlying the statute, the past agency of the practice the in implementing the law, and the relevant case law. In sum, the MBTA's of FWS on includes and killing migratory birds by any means and in any manner prohibition broad taking the of MBTA, as informed by the Moreover, the prohibitions and taking incidental killing. any treaties, limited to hunting, poaching, or not particular factual context; rather, underlying are that birds, take including is migratory of killing generally take unauthorized to extend they or to incidental activities. The MBTA imposes strict liability (with narrow industrial or commercial violations take, from unauthorized misdemeanor incidental or exceptions) for resulting or intentionally willfully show that a defendant the government not Therefore, otherwise. need killed birds to prove a violation took or is bounded MBT under the MBTA Liability by the A. of limits causation, however, and applies to "direct" take where there is a close causal of proximate 6 an action connection its effect between and taking birds. of migratory THE MIGRATORY CONVENTIONS II. BIRD of the States and 1916, (on behalf United Canada), signed a convention to In Great Britain migratory birds. Congress enacted the MBTA in 1918 to implement that protect convention. The States later signed three more bilateral conventions with Mexico, Japan, and Russia United amended to birds. After each convention, Congress migratory the protect MBT A to cover the species addressed in the new convention. Because a primary purpose of the is to comply MBTA the with conventions, I first consider the convention language relevant to four underlying 7 take. incidental 4 United States v. CITGO Petroleum Corp, 801 F.3d 477 (5th Cir. 2105) (CITGO) (holding that ''take" See, e.g., only to and poaching situations). applies hunting 5 prohibition reflects its FWS's that the MBTA's interpretation of take "by any means long-standing consideration could A MBT be includes that take. However, to the extent unambiguously the manner" any in and incidental in ambiguous issue, the Service's interpretation, as clarified that this Opinion and accompanying new considered on of the U.S. Fish & Wildlife Service Manual at 720 FWS 3, is entitled to Chevron deference as expert the section v. U.S. it administers. See Chevron, US.A., Inc. statute Natural Res. Def Council, 467 ofa agency's interpretation Chevron deference inapplicable, the Service's long-standing find (1984). 844--45 Even were a court to 837, and is certainly entitled at a minimum to Skidmore deference as the thoroughly considered, valid, interpretation United FWS that it has consistently held for of least the last 40 years. See at judgment reasonable administrative (1944). v. Corp., 533 U.S. 218,228 (2001) quoting Mead v. Swift & Co., 323 U.S. 134, 140 Skidmore States 6 to "incidental take" and "intentional take" are NOT Note that "indirect take" and "direct take." As equivalent discussed below, the latter tenns relate instead to the closeness of the causal connection between an action and its take of birds. Thus, it is possible to have incidental migratory that is direct and incidental take that is taking effect the This is important because, as also discussed below, distinction prohibitions indirect. of the MBTA do not apply to indirect take, such as that caused by habitat modification. 7 expressly primary purpose is inherent in the name of the statute and This referenced in its provisions. See 16 U.S.C. §§ 712 & 704(a). 2

3 The 1916 with Canada declares the goal of the parties to ensure the preservation of convention 8 birds their "great value as a source of food or in destroying insects." due The migratory to not only Birds," but also "Nongame Birds" and "Insectivorous Birds" convention covers "Game 9 and The convention requires the United States closed Canada to establish not are that hunted. for migratory birds, to prohibit the taking hunting seasons and except for scientific nests of eggs purposes, and to restrict shipment or export of migratory birds or eggs during or propagating 10 permits convention authorizes The to kill migratory birds if they become seasons. closed 11 "seriously or other interests." to injurious" "agricultural Convention was Canada The 12 substantially revised convention The revised in declares the commitment of the parties 1995. to the conservation long-term shared species migratory birds through a comprehensive of of 13 including regulation, enforcement and compliance." framework, "monitoring, international of the revised convention requires each country to use its Article to "seek means to IV authority damage [migratory] birds and their to including damage from prevent environments, 14 The convention authorizes the parties to allow the any of taking birds at migratory pollution." time of for scientific, educational, propagative, or "other specific purposes consistent year the 15 of this Convention." conservation principles the with 1936 convention with Mexico declares the The intent to protect migratory birds by parties' means "adequate methods which will permit, in so of as the ... parties may see fit, the far 16 of said rationally for purposes of sport, food, commerce, and industry." birds The utilization convention the parties to establish laws and regulations to ensure the protection of calls for including establishment of closed seasons, birds, of refuge zones, and migratory establishment 17 restrictions other the birds. on Like of convention with Canada, the migratory hunting 18 Mexico both "migratory game" and "migratory non-game" birds. with convention protects conventions with Japan, entered into in 1973, and Russia, in 1976, broadly recognize the The value of birds for a wide range of purposes and commit the parties to protect migratory migratory or sale of species. for the parties bird to prohibit the taking generally convention calls Each to birds eggs, but authorizes the parties and allow exceptions to those prohibitions for migratory specified purposes, including hunting during established seasons, and more generally "for scientific, educational, other specific purposes" not inconsistent with the propagative, or 8 Protection States and Great Britain for the United of Migratory Birds, proclamation, 39 Stat. Convention between (Aug. 16, 1916) (Canada Convention). 1702 9 Id. I, 39 Stat. at 1702-03. art. 10 Id. II-VI, 39 Stat. at 1703-04. arts. 11 Id. VII, 39 Stat. at 1704. art. 12 Protocol Between the Government of the United States and the Government of Canada Amending the 1916 Migratory of America for the Protection of Birds, Convention United Kingdom and the United the States Between Sen. Doc. 104--28 (Dec. 14, Treaty 1995). 13 Id. art. II. 14 Id. art. IV. 15 art. II. Id. 16 Convention for the Protection of Migratory Birds and Game Mammals, art. I, 50 Stat. 1311 (Feb. 7, 1936). 17 Id. art. II. 18 Id. art. IV. 3

4 19 principles the conventions. or In addition, each of the conventions with Japan and objectives of 20 for to prevent damage to birds and their environments. calls the Russia parties protecting the to provide mechanisms for States migratory require United These conventions habitats from all threats. Although the original convention birds Canada and the and their with Mexico principally on mechanisms to regulate focus hunting convention with the migratory of from species, non-game including of migratory birds, species protect conventions both birds, all of migratory birds in threat to conservation extermination or indiscriminate slaughter. The major that undoubtedly but other significant threats hunting, could not possibly was 1916 commercial anticipated in 1916 have developed over the past 100 years, including many activities have been incidentally take such as power lines, communication towers, oil waste pits, surface- that birds, 21 tailing wind farms. ponds, mining and the Convention was, as noted Consequently, Canada amended and expanded in 1995 to call for a comprehensive approach to conservation of above, birds, migratory regulation, and enforcement. The later conventions with including monitoring, of Russia for implementing legislation that broadly prohibits the take Japan each and call with to exceptions. Finally, the conventions specified Japan and Russia, birds, migratory subject amended convention with Canada, all and for the parties to take action to prevent the call to birds and their environments. damage migratory of take of migratory regulation specifically address bird migratory conventions the not While do of occurs incidental to other activities, their provisions broadly support the regulation birds that taking the of migratory birds by any means, including by industrial or commercial and killing to to unrelated fact, Canada stated in a diplomatic note hunting. the State activities In of the Canada Convention that held interpretation" Department that it was the parties' "mutually make be with that convention for Canada to consistent ''the authorization of incidental it would 22 contingent take compliance with approved conservation measures. " on Congress plainly intended the to implement all MBTA these treaties, the later conventions with of including Japan, and amended convention with Canada, since in each instance Congress Russia and the by MBTA each convention as it was adopted incorporate the United States. the amended to 19 the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, 25 Convention for T.I.A.S. No. 3329, (Mar. 4, 1972) (Japan Convention) 7990 U.S.T. Convention Concerning the Conservation III; art. Migratory Birds and of Environment, T.I.A.S. No. 9073 (Russia Convention), art. II. I. Their 20 Convention, Russia Convention, art. IV.I, 2(c). V.2(a); Japan art. 21 No. 0005 from Canadian Embassy to United States Department of State, at 2 (July 2, 2008) (diplomatic See Note of migratory birds ... caused by activities that "incidental take from Canada note the State Department stating to including, not limited to, forestry, agriculture, mining, but and gas exploration, construction and fishing activities oil [has] increasingly become a concern for the long-term conservation of migratory bird populations). 22 Id see also The Queen v. J.D. Irving, Ltd., slip op. at 2-3 (New Brunswick Provincial Court June 9, 2008) at 3; the hunting of Canada's implementing legislation as applied outside the (upholding context, and constitutionality a narrow rejecting interpretation in the Canada Convention). Moreover, the doctrine of international of"take" consistently instructs the United States and Canada should comity interpret the Canada Convention. Comity is that nations. two between a treaty of of ensuring consistent domestic application context the important particularly in in e.g., v. Guyot, 159 U.S. 113, See, (1895) ("Comity, Hilton the legal sense ... is the recognition which one 163--64 regard due nation, having another of acts judicial or executive the to territory its within allows nation legislative, both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws."). 4

5 Ill. THE OF THE MBTA AND ITS LEGISLATIVE IDSTORY TEXT TheMBTA A. A provides for the conservation of birds, and implements the four bilateral c_onventions The MBT 23 the and nations that share migratory birds. United by signed States it makes The MBTA other things, ''take" or "kill" migratory unlawful unless that taking to, among birds, is killing or 24 bird bird" In this context, "migratory protected means any regulation. pursuant authorized to 25 any by of includes almost all bird species in the United States. The conventions, and the to the of the Interior broad authority Secretary issue regulations to authorize MBTA grants 26 activities, otherwise prohibited as otherwise and be necessary to implement the may 27 conventions. defined in FWS's general wildlife regulations as "to pursue, "Take" is currently wound, to trap, capture, or collect, or attempt shoot, pursue, hunt, shoot, wound, kill, kill, hunt, 28 or trap, capture, collect." nor "take" is defined in FWS's MBTA-specific Neither "kill" regulations. MBT not does The require a particular mental state for a violation A its prohibitions. 2 of Section MBTA the originally passed read: of as and except as permitted by regulations made Unless hereinafter provided, it as shall unlawfu.l to hunt, take, capture, be attempt to take, capture or kill, kUl, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to shipped, deliver for transportation, transport, cause to be transported, be carry or be carried by any means whatever, receive for shipment, cause to in any manner, any migratory or or or export, at any time transportation carriage, included in the terms of the [Canada convention] or any part, nest, or egg of bird, 29 any bird. such authorized by the Federal Government, the taking or killing of a covered bird "in any Unless was a mental without reference to manner" state. Neither did the original remedy prohibited, in 6 require provision a particular mental state: section person, Any partnership, or corporation who shall violate any association, to of said conventions or of this Act, or who shall violate or fail provisions comply any regulation made pursuant to this Act, shall be deemed guilty of a with and more conviction thereof shall be fined not misdemeanor than $500 upon be or 30 more than six months, or both. not imprisoned 23 See 16 U.S.C. § 703. 24 Id 25 50 C.F.R. § 10.13. 26 16 704(a). U.S.C. 27 Id § 712(2). 28 See 50 C.F.R. § 10.12. 29 Act of July 3, 1918, ch. 128, § 2, 40 Stat. 755 (codified as amended at 16 U.S.C. § 703(a)) (emphasis added). 30 as § 6, 40 Stat. 756 (codified Id. amended at 16 U.S.C. § 707(a)). 5

6 Thus, the not, in its original form, expressly distinguish between incidental take and MBTA did or intentional mental state to violate the statute. require take a particular although the And of the statute the broader hunting expressly (except as MBTA prohibits permitted), prohibitions "possess") are not limited to that (e.g., ''take," "kill," context. history The legislative of Act not expressly address of applicability does the MBT A 1918 the the of The committee reports and floor debate indicate that the primary concerns to incidental take. 31 drafting legislation were the "effective protection of useful migratory birds," Congress in the 32 history Convention. with To be sure, the legislative Canada refers to the compliance and a cause as overhunting declines of migratory bird populations, but of refers to habitat the also practical unrelated of protecting migratory birds for aesthetic and reasons the value loss and cites 33 to hunting and poaching. amendments to the MBTA are relevant to the regulation of incidental take. In 1936, Subsequent revised Congress the language of 2 MBT A in a variety the ways. Most relevant of of section "at any time or in any manner" language was moved to the beginning of the section the here, possible "by as to what it modified) and was strengthened by adding ( eliminating ambiguity any 34 now The provision thus " reads: means. any in this as permitted by regulations made as hereinafter provided Unless and except or in any manner, to it shall means subchapter, at any time, by any be unlawful hunt, take, kill, attempt to take, capture, capture, pursue, possess, offer for kill, or sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, sale, export, cause to be shipped, exported, import, ship, imported, deliver for or or cause to be carried, or transported, carry transportation, transport or cause to be receive for shipment, carriage, or export, any migratory bird, any transportation, any or any such bird, or of product, whether or not manufactured, egg part, nest, or any in whole or part, of any such bird or is composed part, nest, consists, which [the included or the terms of the conventions between egg United thereof, in 35 and Canada, Mexico, Japan, and Russia]. States in 1960, Congress added a felony provision with respect to commercial-related violations Next, 36 section to 6. the act amended to add references to the later-signed conventions. Thereafter, was 31 Rep. 65-27, at 2 (1917). No. S. 32 H.R. No. 65-243, at 2 (1918). Rep. 33 Rep. No. 65-27, S. 2 (1917) (appending letter from Secretary of State incorporating statement from Department at of H.R. Rep. No. 65-243, at 2 (1918) (same); see United Agriculture); v. Corbin Farm Serv., 444 F. Supp. States 510, 532 (E.D. Cal.) {"It is undeniable that Congress was concerned with hunting and capturing migratory birds when it enacted MBT A; the legislative history confirms this concern. The fact that Congress was primarily the with sole does not, however, indicate that hunting was its concerned concern."), aff'd on other grounds, 578 hunting F.2d 259 Cir. 1978); (9th F. Lake Ass'n v. Moon States, 45 Elec. Supp.2d 1070, 1080-82 (D.D.C. 1999) United ("MBTA's legislative history indicates that Congress intended to regulate recreational and commercial hunting" but just hunting and poaching."). regulate the MBTA to however, more than "also that Congress intended suggests, 34 Act of June 20, 1936, ch. 634, § 3, 49 Stat. 1556. 35 U.S.C. § 703(a). 16 36 Act of Sept. 8, 1960, Pub. L. 86-732, 74 Stat. 866 (codified as amended at 16 U.S.C. § 707(b)). 6

7 Three relatively to the MBTA speak directly to the question of mental state recent amendments be proven a prosecution under the MBT A. First, Congress amended section 6(b) in must that in 37 felony to knowing violations. the 1986, limiting provision in response to a Congress did so violated holding felony provision of the MBT A the due process for imposing decision court that 38 basis, and was therefore unconstitutional. on As the Senate Report a strict-liability a felony 39 by the court. the the unintended infirmity" identified amendment was meant "to cure explains, is intended report that "[n]othing in this amendment states to alter the 'strict the also But for misdemeanor prosecutions ... a standard which has been liability' in many standard upheld 40 court Federal decisions." MBT 1998, amended section 3 in the Congress A to eliminate strict liability for Second, of violations involving baiting (the use of grain to attract birds to a hunted field), and hunting 41 substituted instead a negligence standard. concerned Congress of fairness with was issues 42 of strict-liability this to baiting. the In recommending standard application by raised Senate Report noted that it would create only a narrow amendment, to the the exception general of strict liability under the MBT A: longstanding rule elimination The to however, applies only of hunting with bait or liability, strict baited areas, and is not intended in any way to reflect upon the general over application of under the MBT A. Since the MBT A was enacted liability strict in offenses the statute have been under liability crimes. The only 1918, strict from this standard was in 1986, when Congress required scienter for deviation 43 under Act. the felonies in 2002 Congress expressly addressed incidental take under the MBTA in the particular Finally, 44 the activities. of In military-readiness 2002 legislation, Congress (1) temporarily context exempted "incidental caused by military-readiness activities from the prohibitions taking" the of required the Secretary of Defense to identify, minimize, and mitigate the adverse MBTA, (2) directed military-readiness migratory birds, and (3) on FWS to issue of activities effect the MBTA creating a permanent authorization for regulations under military-readiness 45 ruling legislation enacted in response to This was that had enjoined military a court activities. 37 Wetlands Resources Act of 1986, Pub. L. 99-645, § Emergency 100 Stat. 3590. 501, 38 United States Wulff, 758 F.2d 1121 (6th Cir. 1985). See v. 39 (1986). 99-445, at 16 No. s. Rep. Id. 40 41 Bird Treaty Reform Act of 1998, Migratory L. 105-312, § 102(2), 112 Stat. 2956 (codified at 16 U.S.C § Pub. 704(b)). 42 H. Rep. No. 105-366, at See S. Rep. No. 105-542, at 4-6 (1998). 2 (1998); 43 S. Rep. at 3 ( 1998); see id. at 2 ( describing strict liability as "a hallmark of the law"). 105-366, No. 44 this directly addressed the implementation of the legislation it did not technically amend the Although MBTA, Nonetheless, for convenience, I also refer to it as an amendment to the MBTA. MBTA. 45 III,§ National Defense Authorization Act for Fiscal Year 2003, Pub. L. 107-314, Div. A, Title Stump 315 Bob and reprinted 16 U.S.C.A. § 703, Historical in Statutory Notes. The Stump Act contained Stat. 2509, (2002), 116 drafted be as an authorization or an exemption. whether the regulations should conflicting regarding language Because the legislation did not actually amend the MBT A, which a true exemption would have required, the Departments regulations the Interior and Defense concurred that FWS's of would be appropriately drafted as an authorization. 7

8 46 training killed migratory birds. that Significantly, Congress limited the incidentally for military-readiness to training and operations related to combat and the authorization activities equipment for use; it expressly excluded routine military-support functions and of combat testing "operation the of the protection afforded by the 2002 legislation, activities" from industrial the non-combat-related subject to the prohibitions of fully Act. leaving such activities Analysis B. of the MBTA in 1918 did not require a particular mental state for a violation of its The text by later therefore liability. This conclusion is reinforced and strict prohibitions, imposed does the the plain language of the text Similarly, not limit the MBTA's to MBTA. amendments a certain factual context, and there is no prohibitions history to the contrary. to legislative The text of the MBTA created a broadly original strict-liability crime. 1. applicable plain language The the MBT A does not specify a required mental state for of violations. most than the prohibited acts are of inconsistent with anything other logically Although some action (hunting, to kill), that fact does not demonstrate congressional purposeful attempting do impose on other prohibitions that requirement not logically to a mental-state intent a requirement. At the time Congress drafted the incorporate such the MBT "take" and A, words defined be expansively. could contemporaneous dictionary interpreted the word ''take" "kill" A include "[t]o grasp with the hand or with to instruments; to lay hold of; to seize; to grasp; to any get into and hold" as "[t]o seize or lay hold of well remove; to carry off; to remove one's as 47 The word any was "kill" as "[t]o deprive oflife, animal or vegetable, in defined generally." 48 to any means; to manner by death; to slay." and put Both definitions are sufficiently broad to encompass actions performed negligently, or without any knowledge of knowingly, 49 wrongdoing. word ''take" had at common law a particular connotation when used in the I recognize the 50 game denoting the act of reducing a wild animal to possession or of control. animals, context there evidence that the But meaning of''take" required deliberate or common-law is no that as to inadvertent or negligent conduct opposed reduced wildlife to intentional conduct, intended or control. Likewise, there is no reason to believe to Congress that possession human the term in the MBTA to hunting or to otherwise require deliberate, intentional limit ''take" simultaneous Congress's action. use term "kill," the that certainly lacks any of a term in common connotation as being restricted to hunting law or conduct, demonstrates intentional death Congress broadly to prohibit actions that that the meant of birds. At the same time, cause it is evident that, by including the terms "hunt" and "kill" within the list of prohibited actions, 46 Ctr.for Diversity v. Pirie, 191 F. Supp. 2d 161 and 201 F. Supp. 2d 113 (D.D.C. 2002), vacated on Biological App. 2003 Biological Diversity v. England, U.S. Ctr.for Lexis 1110 (D.C. Cir. Jan. 23, other nom. grounds sub see H. Rep. No. 107-436, at 286, 288 (2002). 2003); 47 (1915). Dictionary, at 1697-98 Webster's Imperial 48 Id at 922. 49 See also United States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070, 1078-79 (D. Colo. 1999) (analyzing of''take"). cause a different dictionary, which included "to from to die" in the definition similar definitions so See, e.g., Geer v. State of Conn., 161 U.S. 519 (1896), overruled by Hughes v. Oklahoma, 441 U.S., 322 (1979); Babbittv. Home Chapter Cmtys.for a Great Sweet Or., 515 U.S. 687,717 (1995) (Scalia, J., dissenting). 8

9 Congress intended term "take" to mean something other than simply hunting or poaching the And, as matter, the fact that the migratory bird conventions have always activity. a final and insectivorous protected non-game species well game species, including of as as birds not subject to of or other forms of intentional take, makes it species hunting hundreds Congress would have focused exclusively on hunting in enacting legislation to implausible that conventions. those of the implement protections any of were modified by the phrase "in prohibitions manner," later the all Moreover, to read strengthened means or in any "by This language is extraordinarily any manner." 51 As scope MBTA. the of the of mandates interpretation reasonable broadest the expansive and below, Federal courts have relied upon this language in concluding that the MBTA discussed incidental language The MBTA's plain prohibits compels the conclusion that the take. prohibitions of are strict-liability crimes (except in the context of felony prosecutions the MBTA cases) The not limited to a particular factual context, such as hunting. baiting and and the to thus apply of incidental take. MBTA prohibitions nature amendments 2. the MBTA's strict-liability MBTA and Subsequent demonstrate to incidental take. applicability conclusion that the MBT A applies to My take is confirmed by the three amendments incidental to discussed above that addressed mental state. The first two amendments, regarding the the Act provision baiting, imposed limited mental-state felony and requirements-those requirements that to if the existing statute's silence with respect no mental state meant only necessary were the mental was required. particular state third amendment, which specifically Likewise, authorized incidental take related to military-readiness activities, can only be understood as reflecting congressional that the Act otherwise prohibits incidental take. understanding MBTA of amendments to the these demonstrates that multiple subsequent legislative The history and a strict-liability that the MBTA was understood, statute. Those Congresses reaffirmed, 52 not did "hallmark Congresses change this law," the but instead crafted narrow amendments of address particular circumstances where they believed strict liability was unwarranted. Had to as the default mental state under the MBTA, Congress wanted remove Congress liability strict to 1986, not in such a piecemeal fashion. In proceeded Congress could have amended would have statute to change the default mental state the any violation to a knowing violation. Instead, it for applied only to felonies: the the knowing standard Report emphasizes that "[n]othing in Senate this amendment is intended to alter the 'strict liability' standard for misdemeanor 53 Similarly, 1998, Congress amended in MBT A to correct a perceived the prosecutions." the related the strict-liability standard to applying baiting context. Again, the unfairness to amendment targets the particular problem and nothing resulting of further-"elimination strict any in baiting context was "not intended liability" the way to reflect upon the general in 51 See Virginia v. Tennessee, 148 U.S. 503, 519 (1893) ("Where any particular word is obscure or of doubtful removed meaning, itself, its obscurity or doubt may be by by reference to associated words. And the meaning taken of a term may be enlarged or restrained by reference to the object of the whole clause in which it is used."). 52 Rep. No. 105-366, at 2 (1998). S. 53 S. Rep. No. 99-445, at 16 (1986). 9

10 54 application under the MBT A. " strict And in 2002, Congress could simply have of liability MBTA to exclude incidental take from its prohibitions; instead, Congress expressly amended the explicitly by military-readiness activities ( and excluded the incidental authorized only take activities" from this authorization). of industrial "operation case enormous and varied body of an law discussing the relevance of is I acknowledge there that interpretation of preexisting law. It is widely recognized that the intent of the a later Congress's 55 and views of subsequent Congresses are enacted controls, relevant that provision Congress the 56 in the meaning of prior Congresses to passing legislation. dispositive In necessarily as not courts give such views little or no weight to subsequent legislative some circumstances 58 57 while others, courts give great weight. · in interpretations, expressed the weight to give subsequently determine views by Congress, the To appropriate were views of factors that generally relate to the context in which those a number courts consider 59 Supreme has rejected giving significant weight to subsequent views Court Thus, the expressed. analogy to treatment of the by in the following circumstances: those views are merely inferred 60 issue legislation; other those views were ma4e promoting relevant but in subsequent 61 those legislation; views are found in isolated or by individual members unsuccessful statements 62 63 particularly if not in the context of or amendment to the applicable law. committees, an contrast, in in which the subsequent Congress actually enacts new law In circumstances weight intent the earlier statute, courts give great of to the views of the subsequent declaring an 64 Congress. This in circumstances in which applies new legislation did not principle the declare the intent of the earlier statute, but the new legislation is premised on a expressly 65 interpretations of the earlier statute. of Giving weight to subsequent interpretation particular is particularly appropriate the precise intent of the original enactment is Congress when 66 of applies with special force when combined with the principle principle this and "obscure," 54 Rep. No. 105-366, at 3 (1998). S. 55 Mayer & Co. v. Evans, 441 U.S. 750, E.g., (1979). Oscar 758 56 New Jersey, 461 U.S. 773, 784--85 (1983). E.g., Bellv. 57 431 Bhd See, Teamsters v. United States, Int'/ U.S. 324, 354 n.39 (1977). e.g., of 58 See, Red Lion Broad Co. v. Fed Commc'ns Comm 'n, 395 U.S. 367, 380-82 (1969). e.g., 59 750 Liberty Co. v. Commercial Union Ins. Co., 978 F.2d Ins. (1st Cir. 1992) (stating that in case-by- See Mutual is of what weight to give subsequent legislative all-important''). "context interpretation, analysis case 60 See States v. X-Citement Video, 513 U.S. 64, 77 n.6 (1994). United 61 E.g., States v. Wise, United U.S. 405,411 (1962). 370 62 Southeastern Cmty. College v. Davis, 442 U.S. 397,412 n.11 (1979); see also Hagen v. Utah, 510 U.S. 399,420 in texts" to "deliberate expressions of informal conclusions about (1994) (contrasting passing references "merely the of Congress that enacted the original language). congressional intent" 63 Dunn v. Commodities Future Trading Comm 'n, 519 U.S. 465, 478-79 (1997) ("legislative dicta" See legislative in no subsequent amendment that made no change to applicable law shed of light on intent of Congress that history enacted relevant provision). 64 Red Lion, 395 U.S. at 380-82. 65 See United States, 517 U.S. 748, 770 (1996); Lovingv. United States v. Fausto, 484 U.S. 439,453 (1988) cf ("This classic judicial task ofreconciling many laws enacted over time, and getting them to 'make sense' in a later of a statute may be altered by the implications of implications combination, assumes that the necessarily statute."). 66 Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980). 10

11 67 deference of the implementing agency. to And at least some a long-standing interpretation not weight is accorded the legislation also congressional statements but itself, subsequent just to 68 legislative in the history legislation. the subsequent of of subsequent Congresses strongly support the interpretation that the MBTA's Here, the actions the incidental As discussed above, the intent of take. original statute is, at to apply prohibitions 69 silent in 1918 as to the required "obscure"-Congress state. was As discussed mental worst, of each amending Congress was consistent with longstanding interpretation further the below, 70 agency practice. interpretation does not the subsequent of mere And legislative consist members or committees of a subsequent Congress. Rather, Congress of enacting was opinions to address concerns with the existing law. law doing so, the amending Congresses were new In the existing law. In other words, "Congress is not merely expressing an necessarily interpreting on opinion may come before a court but is acting a matter which it understands its on what own 71 to " acts prior mean. of the three amendments amended section 2 of the MBTA or expressly stated that Although none Congress intended the MBTA to be a strict-liability statute that applied to incidental take in 1918 amending migratory each case Congress passed legislation in the MBTA that can only of birds, understood as being premised be that on of the original 1918 Congress's interpretation 72 the above, none of the As make sense absent discussed conclusion prohibition. amendments 73 the MBTA is generally a strict-liability statute. that the recognition of the strict- Moreover, 74 nature liability MBTA Congress has been "consistent and authoritative," the by failure of and 75 For example, expressly "virtually nullify" the amendments. to accept that interpretation would be a legal nullity if from military-readiness activities would authorizing incidental take resulting that take not otherwise prohibited. Although the statements in the committee reports were 76 may less weight than the legislation itself, be described above due due least some are at they 77 weight, any case merely confirm what logically and from the text of the original Act in follows the amendments themselves. and the context here is not similar to those cases in which the Supreme Court determined that Finally, of subsequent Congresses were entitled to little or no weight in interpreting prior views 67 Red Lion, 395 U.S. at 380-82; Andrus v. Allard, 444 U.S. 51, 57 (1979) (agency interpretation is particularly See that twice relevant reviewed and amended statute without disturbing agency interpretation). Congress 68 See v. New Jersey, 461 Bell 773, 784-85 (1983). U.S. 69 See Seatrain Shipbuilding Corp., 444 U.S. at 596. 70 See Lion, 395 U.S. at 380-82. Red 71 329,343 Inc. v. Weinberger, 517 F.2d Hospital, (5th Cir. 1975). Mt. Sinai 72 Loving, 517 U.S. at 770; Nat'/ RR. Passenger Corp. v. Boston & Me. Corp., 503 See 407,419 (1992) U.S. original of issue (although not itself amended, amendment confirmed agency's interpretation at provision was make language contrary interpretation would because subsequent amendment superfluous). statutory 73 See Gozlon-Peretz v. United States, 498 U.S. 395, 405--06 (1991) (subsequent enactment could only be explained of existing law). by particular interpretation 74 F.2d States v. Waste See Inc., 734 United 159, 166 (4th Cir. 1984). Industries, 75 See Andrus v. Shell Oil Co., 446 U.S. 657,672 (1980). 76 n.13 Consumer Prod Safety Comm'n, 441 U.S. 102, 117-18 See (1980). 77 See Bell, 461 U.S. at 784-85. 11

12 78 legislation. was passed (three times), that legislation directly relates to Successful legislation of the MBTA), and the subsequent at issue state required for a violation question (the the mental or committees. In limited by individual is not members isolated statements legislative history to state the opinions considering the applicable mental of under the MBT A, a number fact, judicial subsequent the of in expressly the legislative history below, detail greater to discussed refer 79 the MBTA's prohibitions. of nature amendments to the MBTA as confirming the strict-liability A Congresses the prohibitions of the MBT interpreted generally to apply subsequent Three thus basis on a strict-liability to apply to take. Those interpretations are or incidental specifically are prohibitions themselves statutory the of text significant weight. Moreover, to entitled the mental and no suggestion written, any particular include state is required for a broadly that to occur. Therefore, both the text and legislative history violation the MBTA support of strongly and conclusion Act's prohibitions apply on a strict-liability basis the that FWS's longstanding incidental take. to specifically conventions later The conventions. the of language by supported is also conclusion the My prohibitory language as well as language regarding preventing damage to include broad birds their Canada stated in a diplomatic note to environments. United States that the parties and the And Convention. of incidental take is consistent with the Canada regulation agreed that the later as sufficiently broad in scope to allow implementation of the Congress viewed MBTA to subsequent by amending the MBTA protocols include references to them, conventions and expanding the without prohibitions. MBTA's PAST AGENCY PRACTICE IV. of enforcement action demonstrate that the government has construed the MBTA as a Records 8 ° FWS has consistently interpreted the MBTA to apply since 1939. strict-liability statute at least to incidental as first expressly manifested in enforcement cases. And while FWS has take, used generally rather than authorization by permits to address incidental enforcement discretion circumstances has which prosecution is not desirable, FWS in authorized incidental take take in has migratory a variety of appropriate circumstances and in publicly indicated its intent of birds this with consistently of authorization. Finally, FWS has acted program broaden to its in other contexts, including its continuing efforts to work with various industries to interpretation an incidental in its public statements in and international environmental minimize take, Thus, proceeding. s longstanding interpretation and implementation of the Act strongly FWS' construing the MBTA to apply to incidental take. supports 78 (comparing Sinai Hospital, Cf. 517 F.2d at 343 Mt. circumstance before it with cases in which subsequent Inc., legislative history was given little weight). 19 United v. Boynton, 63 F.3d 337, 343 (4th Cir. 1995) (in baiting context); United States v. Apollo Energies, States 611 incidental-take 679,686 (10th Cir. 2010) (in Inc., context); United States v. Citgo Petroleum, 893 F. Supp. F.3d United 841,845,847 Tex. 2012) (in incidental-take context). But see (S.D. States v. Chevron USA, Inc., 2009 2d U.S. Dist. Lexis 102682, at * 11 (W .D. La. Oct. 30, 2009) ( citing case law, discussed above, giving little weight to of views members of Congress concerning interpretation some statute adopted years before). of 80 See United States v. Schultze, 28 F. Supp. 234,236 (D. Ky. 1939) (finding defendants who had killed doves in the no vicinity a baited field guilty though there was of evidence of any guilty knowledge or intent). 12

13 A. Enforcement at least early 1970s, FWS and the Department of Justice (DOJ) have brought Since the outside the hunting or poaching context. Over the last enforcement cases traditional 40 years, activities FWS' (OLE) has investigated hundreds of of or hazards that s Office Law Enforcement birds kill incidental-take context, including oil pits, power-line electrocutions, in the Exxon Valdez, Deepwater pools, waste (e.g., spills application, oil contaminated pesticide brought others. the U.S. Government has investigation, a number of among After Horizon), for MBTA incidental-take violations. OLE has criminal judicious in exercising its cases been authority incidental enforcement over to respect or activities that chronically take-with hazards birds, OLE has generally pursued criminal prosecution only after notifying the take industry of problem, working it to find solutions, and proactively educating each industry about the with 81 avoid the take or to eliminate ways birds. as discussed below, a few migratory of Although, rejected MBTA prosecutions for incidental courts the majority have upheld them. have take, in a written not contested, and are prosecutions without resulting many are Moreover, successful judicial opinion. B. of incidental take Authorization that of take under the MBTA also confirm incidental FWS has long Examples authorized the interpreted to apply to incidental take. Those authorizations would MBTA be necessary not if MBT A did not apply to incidental take. the Regulations granting incidental take authorization to the Armed Forces. 1. FWS directed of the 2003 National Defense Authorization Act (2003 NOAA), Congress part As regulations that the incidental taking issue to authorize by Armed Forces birds of the migratory 82 during military-readiness activities. in coordination and cooperation 2007, Accordingly, in with of limitations, FWS finalized new regulations to authorize, Defense, Department with the 83 that from military-readiness activities take results incidental of the As Armed Forces. MBTA to apply to demonstrates that Congress interpreted the discussed above, the 2003 NOAA take. incidental also 's of the regulation FWS promulgation consistent with, and But was of, the same longstanding interpretation by the FWS itself. Indeed, evidence justifying the in legality the regulation in the preamble, FWS explained how the authorization of incidental of 84 was consistent with the MBTA and the underlying treaties. take Moreover, FWS the limited or retaining Armed Forces in significant ways, the authority to suspend provided authorization to authorization for incidental take if such take would withdraw incompatible with the migratory be bird conventions a population result a significant adverse effect or in of a migratory bird on 85 species. FWS' s retention of this authority makes clear that it viewed the Act as applying to 81 See Directive: Enforcement of the Migratory Bird Treaty Act Chiefs it Relates to Industry and Agriculture as (Nov. 2, 2015). 82 Pub. L. No. 107-314, 116 Stat. 2509 (2002). 83 § 21.15. 50 C.F.R. 84 72 Fed. Reg. 8931, 8946 (Feb. 28, 2007). 85 50 C.F.R. § 21.15. 13

14 incidental take the Armed Forces in circumstances not covered by the special authorization by by the established regulations. purpose 2. incidental take. permits Special for activities Permit" FWS to issue a permit "for allow that fall l Purpose The regulations "Specia 86 the scope outside has types." In some circumstances, FWS permit used this MBTA of specific issue pe1mits for incidental take under the MBTA. Most authority FWS has since to broadly, included take authorization 1996 MBTA in Endangered Species Act (ESA) 21.27 under§ all incidental-take permits for ESA-listed migratory birds. Thus, FWS section lO(a)(l)(B) permits take the MBTA, with ESA section lO(a)(l)(B) under also authorizes incidental 87 MBTA incidental-take permits. constituting also has issued four stand-alone MBT A Special Purpose permits FWS incidental take of for migratory to Federal agencies. Three of these permits authorized incidental take of birds birds during projects eradicate exotic, invasive species that were degrading habitat migratory to species These migratory birds , on various islands. native included a rat- for , including on Anacapa Island eradication project California the (2001); a project to remove off coast foxes on Kanaga Island, part introduced the Maritime of National Wildlife Refuge Alaska National and on Palmyra Atoll project Wildlife Refuge (2011). (2010); another rat-eradication the Service issued a permit to the National Marine Fisheries Finally, (NMFS) in 2012 Service authorizing take catch seabirds occurs as incidental of that under NMFS' s regulation of the by Hawaii-based shallow-set longlin e swordfish fishery. 3. Notice future MBTA incidental-take authorization. regarding prepare of intent to a programmatic environmental published a notice May 26, 2015, On FWS develop to a proposal of enviromnental potential the evaluate to impacts impact assessment 88 authorize incidental take under the regulations that specifically The notice is expressly A. MBT 89 predicated on that the MBT FWS' applies to incidental take. s interpretation A C. Consistent Agency Practices and Statements Other has other interpreted the MBT A as prohibiting incidental take in FWS contexts as consistently and companies work with various industries FWS's to reduce the incidental take of well. , First migratory birds is in paii predicated on that take being prohibited by the MBT A. For examp le, FWS issued luntary wind -energy guidelines that provided guidance to wind-energy developers vo operators how to reduce the incidental take and about migratory birds. That guidance stated of FWS compliance that guidelines would be taken into account when with considered referring the 86 50 C.F.R. § 21.27. 87 See Habitat Conservation Planning and i ncidental Take Permit Processing, Append ix 5-FWS Guidance on Addressing Migratory and Eagles (FWS Only) ( Birds angered , at http 1996) .fws .gov /end available /esa- ://www l ibrary / pdf /Hcpapp5 .pdf. 88 30,032 Migratory Bird Programmatic Environmental Impact Statement , Notice of Intent, 80 Fed. Reg. Permits; (May , 2015). 26 89 id. at 30 ,034, col. I . 14

15 alleged take but compliance would not absolve developers or operators of for prosecution, 90 MBTA liability. branch interpretation ofFWS regulations is consistent with FWS's Second, executive prior 50 Order that "take" as defined in states C.F.R. § Executive interpretation 13186 of"take." 91 and 'unintentional' take." 10.12 The Executive "includes further both 'intentional' Order take" "take that results from, but is not the as of, the activity defines "unintentional purpose in 92 " question. s longstanding interpretation of the MBT A is also reflected in the position of the Third, FWS' on Environmental Agreement The North American international in proceeding. States an United side agreement to the North American Free Trade Agreement (NAFTA)) set Cooperation (a up Commission Environmental Cooperation and provided a mechanism for nongovernmental the for persons to assert that the United States, Canada, organizations or Mexico is failing to or enforce effectively law. A number an environmental filed of the a statement organizations with to of failing enforce the MBTA with United had that the States asserting Commission, a policy incidental take resulting from logging respect In its response, the United States to operations. 93 MBTA is a strict-liability statute that applies to direct the take. that acknowledged incidental CASELAW V. A. History courts originally addressed the question of what mental state was required to violate the The of prohibitions in the baiting context. "Baiting" is spreading feed to attract birds for the MBTA 94 subject authorizes hunting of migratory birds FWS to a variety of hunting purposes. 95 conditions. of those conditions is that the hunting not take place on or over any baited One 96 of of Hunting with the aid baiting. baiting is not, of course, a form of aid area or by the incidental take-killing the purpose of the hunting. But because one can have a variety birds is mental of respect to the bait-one can intend to hunt with the aid of bait, one can states with know can but not intend to be aided by it, one of be negligent as to the presence of bait, the bait of question present-the whether was of knowing that bait reasonable way no could one or have 90 to Energy Guidelines, at 6 (2012) (designed Wind help wind-energy operators minimize USFWS, Land-Based to protected wildlife, including incidental take of migratory birds); see impacts e.g., APLIC and USFWS, also, of bird from Guidelines (2005) (comprehensive guidance for Protection incidental take Avian Plan (APP) reducing power structures). See generally United States v. Friday, 525 F.3d 938, 959 (10th Cir. 2008) (describing how the Service uses threat of prosecution to reduce avian mortality caused by power lines). the 91 Fed. Reg. No. 13186, Responsibilities Exec. Agencies to Protect Migratory Birds, 66 Order 3853, § ofFederal 2(a) (Jan. 10, 2001). 92 Id. § 2(c). 93 Response of the United States of America to the Submission Made by the Alliance for the Wild Rockies, et al. Cooperation, under of the North American Agreement on Environmental 14 at 3-4 (Feb. 29, 2000) (SEM- Article 99-002), available at 995 _ 2000/8475 _99-2-rsp-e.pdf (last visited Dec. 2016). 94 See 50 § 20.l l{k). C.F.R. 95 See generally 50 C.F.R. part 20. 96 50 C.F.R. § 20.2l(i). 15

16 a particular mental was required under the MBT A was frequently disputed in enforcement state involving baiting. actions least at courts in baiting cases have concluded that, because Congress 1939, Since most birds on taking is a prohibition MBTA's requirement, a mental-state the deliberately omitted does not require the government to prove any particular mental state on strict-liability crime that 97 prove the Thus, the government did not need to defendant. a hunter intended to lure part of the with birds violated the MBT bait-the simply by taking a migratory bird over a baited hunter A Although cases were decided in a context where the take itself was in fact intentional area. these birds), conclusions language that the courts used to explain their migratory was, (hunting the 98 the statutory quite broad. with language, consistent the MBTA' s broad prohibition on Based of migratory birds by any means or in any on take the violation, a misdemeanor of any mental state requirement for absence manner and the has also prosecutions for incidental take of migratory birds. Several government brought unreported to by "oil pits" led to killed decisions in the relating birds incidentally prosecutions 99 The first two reported 1970s. in the incidental-take context were issued in early decisions Both the accidental poisoning involved birds. 1978. of 100 In v. Corbin Farm Service, sprayed the defendants were alleged to have United a States contrary pesticide, the labeling to the pesticide, a field on which waterfowl repeatedly fed, of on to a number of the of ducks. In response dismiss, the defendants' motion to death in resulting the easily concluded court the incidental killing that of birds with poison is prohibited by migratory 101 in of the MBTA the any means or language any manner"). broad Turning to the question ("by of whether intent to kill birds, which was lacking in this case, is required, the court concluded 102 that The court reasoned that the MBT A is a "public welfare offense," a class of not. it was 103 Thus, requirement of a showing of intent. dispenses the ''the MBT A can that with crime applied to impose criminal penalties on constitutionally who did not intend to kill be those 104 The court suggested, however, that a crime might not have been committed migratory birds." the "defendants acted with reasonable care or if they were powerless to prevent the if 105 factual case was at the motion-to-dismiss stage, the court did not decide the the As violation." 106 plaintiffs acted with whether care. of reasonable issue 97 United States v. Boynton, 63 F.3d 337,343 (4th Cir. 1995) (discussing history). But see United States v. See liability 848 520,522 (5th Cir. 1988) (Fifth Circuit is unique in rejecting strict F.2d under the MBTA, Sylvester, See generally MICHAEL J. BEAN AND MELANIE J. imposing a "should have known" mental state). instead ROWLAND, THE OF NATIONAL WILDLIFE LAW 72-75 {3d ed. 1997). EVOLUTION 98 See, United States v. Schultze, 28 F. Supp. 234,236 (D. Ky. 1939) ("it was not the intention of Congress to e.g., any intent knowledge or require to complete the commission of the offense."). guilty 99 No. See, States v. Stuarco Oil Co., e.g., 73-CR-127 (D. Colo. July 11, 1973). United 100 444 F. Supp. 510 (E.D. Cal.), ajfd on other grounds, 578 F.2d 259 (9th Cir. 1978). IOI Id at 531-32. 102 See at 532-36. id. 103 at 535-36 (quoting Morissette v. Id States, 342 U.S. 246,256 (1952)). United 104 Id at 536. 105 Id.; cf United States v. Park, 421 U.S. 658,673 (1975) (suggesting that being powerless to prevent a violation of strict-liability statute could be a defense). criminal 106 444 F. Supp. at 536. 16

17 107 In FMC Corporation, United a pesticide manufacturer allowed washwater States v. in numerous bird deaths. On a pesticide into a pond, resulting to contaminated with escape had conviction MBTA, FMC argued that its conviction the been improper its under appeal of 108 to kill birds. because it had not intended of the to Analogizing manufacture pesticides ( "extrahazardous" liability that or support strict dangerous") in a "abnormally activities would 109 held that, tort context, the court before facts proof of intent was not necessary. the And, on it, court expressly that "[i]mposing strict liability the cautioned although this case does in on FMC on liability imposing of a bird will result in some strict criminal every death dictate not that 110 be that concerns regarding "innocent it also violations" could opined party," technical 111 via enforcement discretion. addressed the Corbin Farm Service and FMC cases represent the initial judicial confirmation of Together, principle that MBTA applies to incidental take. In turn, these successful prosecutions the the to MBT incidental take led for another type the under A citizen suits against the of lawsuit: though no MBTA has Even citizen-suit provision, Federal agencies are government. the under to review of final agency actions subject the Administrative Procedure generally judicial 112 that authorizes The AP A is members of the public to challenge agency action A). Act (AP 113 or not in accordance arbitrary, law." "otherwise capricious, with even though the Thus, of the public have no legal remedy against the private entities that violate the MBTA, members have that members held courts the public can file citizen suits seeking to enjoin federal action of "not in accordance violates the MBTA, as that violation may make the action that they allege 114 with law." first important involved appeals of a number of district court cases addressing the The case application the migratory birds killed by logging activity to National Forests. In of MBTA on 115 v. Evans, Seattle environmental groups Audubon that habitat modification Society contended constituted The MBTA. of northern spotted owls the "take" under indirectly deaths to that led Circuit disagreed. Ninth court first noted that the regulatory definition of ''take" that applies The of the sort engaged in by hunters and poachers," and conduct to MBTA "describes physical the 116 or habitat modification in MBTA of its regulations. the Next, the mention that there is no of examined distinction between the statutory definition the ''take" in the Endangered court 117 Act and the regulatory definition of "take" under the MBT A. definition The former Species 107 572 902 (2d Cir. 1978). F.2d 108 Id. at 907. 109 at 907-08. Id 110 Id. at 908. at 905. Id Ill 02 §§ 551 et seq. 5 U.S.C. 113 Id. 706(2)(A). § 04 a Federal the scope of this opinion, Although that it is beyond agency acting solely in a regulatory capacity I note does not itself "take" or "kill" birds for purposes of the MBT A if birds are subsequently incidentally taken or killed v. by subject to that regulation. Protect our Cmtys. Found party Jewell, 825 F.3d 571, 586 (9th Cir. 2016). a third That said, Federal agencies in that circumstance may have obligations under Executive Order 13186, Responsibilities 2001). Federal Agencies to Protect Migratory Birds, 66 Fed. Reg. 3853 (Jan. 10 of llS F.2d 297 (9th Cir. 1991). 952 06 Id at 302. 07 Id. at 303. 17

18 118 includes further defined by regulation to include habitat modification in certain "harm," 120 119 circumstances, does not include "harm" in its definition of "take." while The latter the 121 agreed district court that these differences are "distinct and purposeful." Ninth with Circuit the the court and Corbin Farm Service on FMC basis that those appellate distinguished Finally, the although unintended, bird poisoning; the court did cases read those cases as involved direct, not of leading indirectly to bird deaths, amounts destruction, the 'taking' habitat ''that suggesting to 122 the MBTA. migratory Thus, under the Ninth Circuit's analysis, birds" crucial factor under the the of the prohibitions of the MBT A was whether the action in question directly or in application 123 in deaths. resulted indirectly bird response to the holding in Seattle Audubon, plaintiffs began to allege not just Apparently in caused habitat take modification, but also direct taking of migratory birds when by indirect undertake Federal agencies land-management activities or nesting season. These approve during success, circuits AP A had some to allowing some district courts in other the under claims Seattle Audubon, Corbin Farm Service and FMC, and hold that timber follow distinguish habitat) is a their affecting by harming that to opposed (as kills birds directly birds harvesting 124 take prohibition. the of violation rejected application of the Other in the logging context. One of these, Mahler v. courts MBTA 125 Forest contains a detailed rebuttal of Service, harmonization of Seattle Audubon, on US. the one hand, and Corbin Farm and FMC, on the other. In the the district court Mahler, acknowledged application that the MBTA incidental take "draws substantial support from of to 126 criminal statutory case law developed in and cases." language the from the court Nonetheless, exploit to MBT A "applies to activities that harm intended to harm birds or are the concluded that parts. birds, as hunting and trapping, and trafficking in birds to bird such The and MBT A does 118 16 u.s.c. § 1532(19). 119 50 C.F.R. § 17.3. 120 50 § 10.12. C.F.R. 121 952 F.2d at 303. 122 Id 123 direct versus indirect dichotomy presented by the Ninth that can be more precisely resolved as a Note the Circuit by determining whether the action taken was the proximate cause of the Timber bird deaths. resulting matter legal those directly nesting birds when trees are felled is more clearly the proximate harvesting of kills deaths that cause timber as habitat loss, felling has a more attenuated than which potential death effect-the birds through of See, e.g., United States v. Moon in the future. increased reduced resources at some unknown point competition for 1999). A F. Supp. 2d 1070, 1085 (D. Colo. 45 A previous appellate case rejected an MBT claim 'n, Lake Elec. Ass (court v. Defenders of Wildlife 1989) Envtl. Prof. Agency, 882 F.2d 1294, 1302-03 (8th Cir. on different grounds. claim regulation EPA alleging that its rejected against pesticides under Federal Insecticide, Fungicide, and of FIFRA that holding poisoned, §§ 136-136y, resulted in migratory birds being 7 U.S.C. (FIFRA), Rodenticide Act the exclusive provided means review pesticide decisions). judicial ofEPA's of 124 v. Martin, 933 F. Supp. 1559, Sierra (N.D. Ga. 1996), reversed on other grounds, 110 F.3d 1551 Club 1564-65 Sept. Ill. see Sierra 23, v. U.S. Dept. of Agric., 1995 U.S. Dist. Lexis 21507, at *54-59 (S.D. Club 1997); (11th Cir. takings, ( distinguishing claims relating to indirect 1995) direct between rejecting claim of indirect taking, citing and Seattle Audubon, finding that Forest Service had not adequately addressed direct take claim, and directing Forest Service to issue on remand), ajf'd, 116 F.3d 1482 (7th Cir. 1997); see also Ctr.for Biological Diversity v. address (holding 191 Supp. 2d 161, 175 (D.D.C. 2002) F. that military live-frre exercises that incidentally killed Pirie, migratory birds violated the MBTA), vacated on other grounds sub nom. Ctr. for Biological Diversity v. England, Cir. 2003 Lexis 1110 (D.C. App. Jan. 23, 2003). U.S. 125 927 F. Supp. 1559 (S.D. Ind. 1996). 126 Id at 1576. 18

19 127 not other activities that result in unintended deaths of migratory birds." apply Looking at to statutory language, emphasized the lack of any express indication that Congress the the court "by any context, take, and concluded that, in to the to incidental intended MBTA apply the any manner" language should be understood to ensure that or means of hunting or in all means 128 birds Next, the court asserted that the were of the statute (at that capturing covered. history 129 show any concern for incidental take of migratory birds. time) The court also noted did not interpretation a broad that prohibitions inconsistent with the decades of the was MBTA's of prosecutions under the MBTA, logging that application of the MBTA without criminal and 13 restrict, substantially would prohibit, most logging. or ° Finally, the court even effectively the lack "apparent that found meaningful limits" on applying the MBTA to incidental take of any 131 expressed cases similar Courts in two other logging interpretation. against mitigated that 132 conclusions with little analysis. decisions in a few AP A cases in other contexts have And 133 language suggesting that the MBT A may not apply to certain incidental take. included at least that Audubon, arguments by criminal defendants addressing the MBTA does Seattle courts After incidental take had to consider the holdings and not apply to reasoning the A cases. Thus, of AP electrocution involving a prosecution by power lines of in a decision that raptors resulted 134 the Ass 'n, Electric Lake Moon v. States in In Mahler. analysis the rebutted strongly United court district two questions: (1) whether the MBTA applies only to distinguished between A proscribes conduct, and whether the MBT (2) only physical conduct intentionally harmful first the of question, poaching. The court easily disposed hunting with associated normally and crime, of the MBTA is a strict-liability the the misdemeanor provision holding that because 135 form statute limited to conduct requiring any not could be intent. of The court then embarked on a detailed analysis of the hunting-and-poaching issue. 127 Id 1579. at 128 Id at 1579-80. 129 at 1580-81. Id 130 1581-82. at Id 131 at 1582-83. Id. 132 U.S. Forest Service, 988 F. Supp. 541,549 (W.D. Penn. 1997); Newton County Wildlife Ass'n Curry U.S. v. v. 113 110,115 (8thCir.1997)(dicta). ForestServ., F.3d 133 2004) v. 0 'Neill, 386 F.3d City (9th Cir. Sausalito (following Seattle Audubon and rejecting MBTA of 1186 regarding Park Service tree cutting because take alleged to occur only indirectly through habitat modification); claim Our Protect Found v. Salazar, 2013 U.S. Dist. Lexis 159281, at *55 (S.D. Cal. Nov. 6, 2013) (in challenge Cmtys. failed DOl's wind-energy project, court concluded that plaintiffs of to demonstrate that a permit is approval to v. Dist. U.S. 2014 Jewell, Lexis Protect Our Cmtys. Found killing); under for MBTA the required unintentional interpretation at (S.D. Cal. Mar. 25, 50698, {"Indeed, the governing *59 2014) of the MBTA in the Ninth Circuit is quite narrow and holds that the statute does not even prohibit incidental take of protected from otherwise birds F.3d 571 aff'd on other grounds, 825 Audubon), Seattle (9th Cir. 2016) (notably, the Ninth activity.") (citing lawful company's] wind-energy [a Seattle Audubon and stated that "BLM's decision to grant right-of- cite did Circuit not chain request steps removed in the causal many from the potential commission way was an unlawful of 'take' caused wind-turbine collisions," implying that incidental by caused by the wind-energy company's turbine take JLS 14-cv-2261 No. Black, v. Found Cmtys. But cf Protect our MBTA). the prohibited be could operations by in 29, n.8 (S.D. Cal. Mar. Golden 2016) (stating, 14 determining whether BLM violated the Bald and (JMA), at Eagle Protection Act and the MBT A in approving a wind project that may take eagles, that "agencies have the authority conduct that would otherwise violate a authorize to example, FWS's ability to authorize law-for of eagles."). incidental take 134 Colo. F. Supp. 2d 1070 (D. 45 1999). 135 Id at 1073-74. 19

20 Addressing the language, the court noted that of the long list of prohibitions found in statutory statute or regulatory definition of"tak.e," only four (hunting, capturing, shooting, and the the conduct that be construed as solely the province "identify trapping) could and of hunters 136 poachers." explained that the prohibition of"killing" "by any means and in any The court also punishing Congress broader application, rather than intended only those that suggested manner" 137 the that court And the MBTA noted that Congress was aware motives. act with who specific 138 interpreted apply beyond hunting and poaching. been to had court addressed the contrary case law, discussing Seattle Next, and Mahler at the Audubon Regarding length. no the Lake court Seattle Moon position regarding the Audubon, took applicability to take caused by habitat modification, but to the extent MBTA's Seattle that "may read to say that the be regulates only physical conduct normally MBTA Audubon 139 of the MBTA is unpersuasive." In with its interpretation hunting poaching, associated and court takings Seattle Audubon's distinction between direct and indirect the to be particular, found act), the of causation and "actus reus" (wrongful conflating and reading into illogical, concepts of the misdemeanor that ignores the strict-liability nature the MBTA a mental-state requirement 140 provision. noting "that Congress reviewed and substantively amended the MBTA in After 141 without to vitiate the holdings attempting 1986 ... Corbin Farm," FMC the court and of nothing of"kill" and to and ''take" found definitions contemporaneous examined dictionary 142 a "direct" apply suggest to they application that only force. of Turning to Mahler, the Moon Lake court found that Mahler's reliance on legislative history was unwarranted, as prohibition the killing migratory by any means and in any manner is not on birds 143 of Lake court engaged in a detailed examination Moon the the Nonetheless, ambiguous. 144 history legislative Act, of and concluded that it suggests the Congress intended the 1918 ''that 145 more to MBTA than regulate poaching." and hunting Moon Lake court also rejected just The reliance on an absence Mahler's criminal prosecutions-although there had been no previous of prosecutions based court bird by power lines, the caused noted that the government on deaths instituted at least five MBTA prosecutions against private companies without the had physical 146 Lake Moon the Finally, court poaching. conduct hunting with associated normally and Mahler's about the unreasonableness of the government's interpretation. concern addressed Although agreeing ''that courts should not rely on prosecutorial discretion to ensure that a statute 147 does those beyond its proper confines," not ensnare court other reasons for found the an in First, of the MBTA would not lead to absurd results. reading that concluding a broad 136 at 1074. Id 137 applies 1074--75 (noting that the prohibition Id possession and sale at regardless of whether the birds were on taken illegally). 138 Id. at 1075 (citing hearing relating to Kesterson Reservoir, a government-operated facility that caused migratory bird deaths to contamination, in which MBT A liability was discussed). due 139 Id. 1076. at 140 at Id. 1077. 141 Id. 142 Id. 1078-79. at 143 Id at 1079. 144 See at 1079-82. id. 145 Id. at 1080. 146 Id at 1082-83 (citirig three oil-pit-related prosecutions, in addition to FMC and Corbin Farm). 147 Id at 1084. 20

21 MBTA prosecution, must prove proximate causation, which requires that the the government death the be "reasonably anticipated or foreseen as a natural consequence" of migratory of bird 148 its noted that exceptions in the MBTA and court regulations allow for Second, the the action. 149 Secretary. the Thus, by court rejected the argument that the MBTA the reasonable regulation 150 exhibited by hunters conduct poachers. only physical prohibits normally and in Moon Lake, The as it was, did not, however, end the debate in the courts opinion detailed 151 in the incidental-take context. enforcement hearing MBTA cases Lake, Moon Since two circuit courts have reached opposite conclusions. Tenth Circuit affirmed convictions under the MBTA in First, the v. States United Apollo 152 Energies, Energies was a consolidated Inc. of Apollo stemming from the appeal convictions death birds that became trapped in a particular type of oil-drilling equipment ("heater- of Defendants treaters"). that the MBTA does not create a strict-liability crime, and first argued 153 lacked mental state. they the that required held this contention was foreclosed court The that 154 Tenth Circuit by opinion, a previous Corrow, which had held in a possession- States v. United 155 misdemeanor violations and-sale the MBTA were strict-liability crimes, case that under and noted that nothing in "lends itself to carving out an exception for different types of Corrow 156 conduct," operation of equipment that incidentally takes birds. In concluding that the such as statute, is a strict-liability MBTA the court cited Energies 1986 felony amendment as Apollo the the legislative scheme invokes a lesser mental state [than knowingly] for misdemeanor "evidence 157 violations." the court suggested that the facts And contrary cases might be distinguishable of 158 involving habitat modification, but noted that that case was not before it. as The court "The question is whether unprotected oil field equipment can take continued: here kill or 159 migratory It is obvious the oil equipment can." birds. due-process arguments: (1) the MBTA is unconstitutionally vague as to Defendants also made a crime; MBTA the constitutes does not provide fair notice because what (2) its breadth, of deaths, steps removed from bird reaching innocuous and (3) the MBTA violates due several acts 148 at Id. 1085. Id. 149 150 1088. Id. at 151 States v. WCI Steel, Inc., 2006 U.S. See Lexis 55593, at *6-14 (N.D. Ohio Aug. 10, 2006) United Dist. split in (discussing without ruling). cases, 152 (D. F.3d (10th Cir. 2010), aff'g 2009 U.S. Dist. Lexis 611 679 Kan. 2009); see also United States v. CITGO 6160 Petroleum Corp., 893 F. Supp. 2d 841 (S.D. Tex. 2012) (conviction for birds taken in large open tank at a refinery), rev'd, 801 477 (5th Cir. 2015); cf United States v. Van Fossan, 899 F.2d 636,639 (7th Cir. 1990) (issue of F.3d without state raised on appeal, mental court noted that it was not plain error to convict defendant not establishing but also United actions-purposefully poisoning non-migratory birds-would birds); kill migratory he knew his that States v. Chevron USA, Inc., 2009 U.S. Dist. Lexis 102682, at *8-11 (W.D. La. Oct. 30, 2009) (criminal sanctions for incidental "clearly proper" in some take where prohibited act foreseeably resulted cases-particularly otherwise death in result protected not where take was unforeseeable of of legal act). species-but 153 611 F.3d at 683. 154 119 796 (10th Cir. 1997). F.3d 155 611 F.3d at 684-85. 156 Id. 685. at 157 Id. at 686. 158 Id. 159 Id. 21

22 process as the defendants' conduct. The court easily disposed of the first of these applied to 160 that is broad, but not vague. holding the arguments, MBTA on of the court embraced and elaborated MBTA, Moon Lake's breadth the Regarding the causation (in the form of foreseeability) assertion as a limit on MBTA that proximate functions the is stretched to criminalize predicate acts MBTA could not have "When prosecutions: that reaches statute the its birds, on effect in the result to foreseen reasonably been proscribed 161 point." the court concluded that "the MBTA requires a constitutional breaking Thus, 162 constitutional statute's violation to pass the muster." proximately defendant to cause To due process concern, resolve court required reasonable notice when it is not foreseeable the the 163 conduct may result in the death that the specific protected Turning to the convictions of birds. of the court found that the record demonstrated that the Service had notified one on appeal, the 164 of over a year before the bird death resulting in its conviction. defendants The the danger as that the other defendant, of the court found no reasonable reversed the conviction court first issue have at that would (without specific notice), that the equipment at known person point 165 lead to deaths would of migratory birds. contrast to the Tenth Circuit, the Fifth Circuit recently overturned an MBTA conviction for In 166 States United v. CITGO Petroleum Corp., the a large open tank at a refinery. In taken birds in Home Sweet v. Babbitt its by Scalia's dissent in discussion Justice began Circuit citing Fifth 167 Chapter for a Great Oregon as of support for the proposition that ''take" is an Communities of wildlife, by killing or capturing, to human common-law term referring to the reduction ancient 168 control. court asserted, without citation to authority, that "[ o ]ne does not reduce an The 169 to or by omission; he does so affirmatively." animal The court human control accidentally Lake's with of definitions of''take" contemporaneous Moon the passage of the analysis rejected stating the existence that MBTA, definitions alternative not determinative, given that of was 170 "a well-understood term of art under the common law when applied to wildlife." was ''take" 160 at 688-89. Id 161 Id at 690. Id 162 163 Id. at 689. 164 Id at 691. 165 see also United States v. Rollins, 706 F. Supp. 742, 743-45 (D. Idaho 1989) (holding Id; the MBTA is strict- that liability but unconstitutionally vague under the facts statute, no the of which the defendant had case, reason to in believe that his action-pesticide application exercising due care-posed a threat to birds). 166 801 477 (5th Cir. 2015), rev'g 893 F. Supp. 2d 841 (S.D. Tex. 2012); see also United States v. Ray Westall F.3d hunting- Inc., U.S. Dist. Lexis Operating, (D.N.M. Feb. 25, 2009) (holding that MBTA only applies to 2009 130674 and-poaching and elaborating on and updating Mahler situations, some degree, by discussing the treaties to incidental of regulation A-finding no express suggestion that the parties intended to require MBT the underlying distinguished addressing and the military-readiness amendment-which the take-and Pirie as direct taking, court analogous to hunting); United States v. Brigham Oil & Gas, 840 F. Supp. 2d 1202 (D.N.D. 2012) (holding that MBTA applies to hunting-and-poaching situations). only ·· 167 515 U.S. 687 (1995). 168 801 F.3d at 489. 169 Id 110 Id 22

23 171 Next, contrasted the MBT A to the ESA and the Marine Mammal Protection Act, the court define ''take" include harassing or harming animals. In the court's view, the latter two which to include expanded its common-law origins to beyond accidental harm to expressly statutes "take" including terms like "harm" or "harass" in the statutory definitions of ''take." In animals by absence MBTA the "[t]he of terms like 'harm' or 'harass,' or any other language contrast, from intent to modify the common law definition supports reading Congress's signaling to 'take' 172 assume its common law meaning." court also rejected two traditional arguments supporting application of the MBTA to The take. the it held that incidental "by any means or in any manner" language meant only that First, 173 the hunting are covered by of prohibition. rejected Second, the court manner and all means from argument statutory exemption for incidental take resulting the military-readiness the that 174 "implicitly expanded activities its common-law meaning." 'take' beyond CITGO the then addressed The FMC and Apollo Energies decisions. Noting that those court stated of"take," the Fifth Circuit that they "confuse the mens did explore the meaning cases not 175 the actus reus requirements." and According to the distinctions "inherent in the nature of rea the word 'taking,'" the act of taking "is not something that is done unknowingly or 177 176 the strict liability argument as a non-sequitur." involuntarily." This "reveal[s] by FWS the number of birds killed on windows, communication towers, and Finally, citing data of results absurd by the of "take" is bolstered the interpretation its concluded court the cats, that birds of hazards to subject to make all would interpretation, which government owners 178 at will. prosecution to note that because some of the language in CITGO's indictment referred only to It is important the birds, to "killing" birds, the Fifth Circuit took not position that only the but ''taking" 179 prohibition was at issue in this case. of The court indicated in dicta without analysis, "take" on killing birds is likewise "limited to intentional acts aimed at the prohibition however, that 180 migratory birds." Analysis Synthesis B. and is strong consensus among the courts that Congress's decision not to expressly require There a particular state for the misdemeanor provision mental of MBTA means that the MBTA is a the strict-liability statute and therefore does not itselfrequire that the government prove a particular mental state in to enforcement Although some courts find this an as action. the dispositive 171 16 u.s.c. §§ 1361-142lh. 172 801 F.3d at 490. 173 Id 174 Id at 491. 175 at 492. Id 176 Id 177 Id at 493. 178 Id at 494. 179 Id. at 489. 180 Id at n.10. 23

24 question of the MBT A prohibits incidental take, other courts disagree, holding or whether that even the MBTA's misdemeanor prohibition applies on a strict-liability basis in suggesting if context the of take incidental to other activities simply falls outside of the hunting poaching, and the narrow However, those cases impermissibly of (or choose to ignore) MBTA. scope intended in take by "any means and prohibition any manner." That language, coupled MBTA's the on prohibitions the of the underlying treaties, compels the conclusion that language the with broad caused MBTA take incidentally and proximately to by any activity. the apply of holding that the MBT A applies to incidental The are correctly decided, and fully cases take FWS' and consistent interpretation. As those s longstanding conclude, the text support cases of MBTA lacks a mental-state requirement. Read literally (and reasonably), the broad language the 181 the includes incidental take. prohibition The legislative history of the original 1918 law is of 182 the Moreover, the history of that amendments to the MBTA inconsistent view. with not this 183 And interpreting the MBTA to apply required states compel this construction. to relate mental to take furthers Congress's broad purpose directly conserve migratory birds in to incidental with the conventions that the MBT A implements, which call for the compliance States to United protect listed species all migratory birds, just game species. of not contexts, for 40 years addition, a variety of over the government has consistently applied In in with partnership of the MBTA to incidental take. FWS OLE, in provision the misdemeanor the has brought enforcement DOJ, in judiciously incidental-take context. actions The history of the government's defense of APA claims based on the MBTA also confirms the the of government. In those cases, the government has argued against long-standing position 184 application A when other statutes provide exclusive means of judicial review, of that the AP 185 that the MBTA does indirectly caused by MBTA modification, habitat apply to take the not 186 and that injunctive relief should capacity, not agencies acting in their regulatory does apply to 187 by that But the government has never defended itself in these suits arguing imposed. not be 188 · MBTA to incidental take. does apply the not to has relied on enforcement discretion FWS address innocent technical Although largely violations the MBT A, in appropriate circumstances of has authorized various parties to FWS incidentally migratory birds. FWS promulgated 50 C.F.R. § 21.15 (authorizing take take authorizations to exercises), issues MBTA military-readiness for incidental take of incidental migratory birds also listed under the ESA and covered under an ESA Habitat Conservation Plan, and has other MBTA permits for incidental take, such as the permits for incidental take issued of mammals. efforts to eliminate nonnative from Moreover, FWS is currently birds resulting a NEPA process to analyze alternatives for regulations that authorize incidental take undergoing 181 See, Corbin Farm Serv., 444 F. Supp. at 532. e.g., 182 E.g., Lake, 45 F. Moon 2d at 1079-82. Supp. 183 E.g., Apollo Energies, 611 F.3d at 686. 184 Defenders, F.2d at 1202--03. 882 185 Seattle 952 F.2d at 303. Audubon, 186 Our Cmtys. Protect 2013 U.S. Dist. Lexis 159281, at *51. Found, 187 Ctr.for Biological Diversity v. Pirie, 191 F. Supp. 2d at 163. 188 unwillingness Mahler, 927 F. Supp. at 1577, 1578 (noting government's See to disavow the holdings in FMC and Corbin Farm Service). 24

25 under the Finally, FWS's longstanding interpretation of the MBTA is reflected in its MBTA. with companies industries that incidentally take migratory birds, as well as in interactions and such as response official documents the States the Commission on of the United to Environmental Cooperation. of the statute, the legislative history, the congressional purpose, and the the Considering text agency practice, the cases holding that the MBT A applies solely to activity like history of poaching I address not persuasive. and the opinions in hunting are Mahler in CITGO and detail, arguments the cogent provide authoritative most in support they as and opposing position. of the court's was highly CITGO dependent on what it called the "common law reasoning The to Although it is true that, with respect definition" wildlife, "take" historically has of "take." used in the context ofreducing wild animals to human control, the court's assumption been that this usage is the exclusive meaning of "take" is unsupported. With one exception, the historical cited by court define "take" by describing what it includes-none of those authorities the otherwise of "take," or affirmatively state that nothing limitations the scope assert authorities to Sweet Home, which made in Scalia's dissent "take." is included The exception is Justice else in the same unsupported assumption. After noting historical references to "take" in the exactly context being used to describe reducing wildlife to human possession, the dissent stated, wildlife citation: without that "take" in this sense-a term is obvious art deeply embedded in the It of (not acts of a class wildlife-describes concerning statutory common and law to done and intentionally (not indirectly omissions) by accident) directly and 189 of animals). particular animals (not populations But it is not at all obvious that the existence of this understanding of "take" makes all other 190 CITGO of Tellingly, neither the invalid. court nor the Sweet take inherently understandings be pointed authority that states that incidental take carmot another "take" in the dissent to Home on the a single case in which a prosecution wildlife take was rejected context, much less for CITGO facts did not constitute "take" in the the sense. All that the that grounds common-law and the Sweet Home dissent pointed to are authorities stating that reducing wildlife to court the is short, the CITGO court and In Sweet Home dissent failed to "take." control human distinction recognize the existence the between a commonly meaning of a term, of understood 191 assertion that that meaning is exclusive of other possible meanings. and Moreover, a the definition not apply when "common understanding does common-law the word departs of 192 Thus, even when a term it had at the old common law." largely from the technical meaning had a clear meaning, the Supreme Court has applied an "ordinary, contemporary, common-law 193 of term that is more consistent with a statute's purpose. the meaning" common 189 U.S. at 718 (Scalia, J., dissenting). 515 190 least Taylor United States, See U.S. 575, 593 (1990) (Congress "presumably had in mind at v. the 'classic' 495 the of take when it passed added). MBTA) (emphasis version common-law" 191 See Moskal v. United States, 498 U.S. 103, 115-17 (1990) (undefined term did not have "one meaning" at U.S. United v. Turley, 352 States 407, 411-12 (1957) (same). common law); 192 Reagan United States, 157 v. 301, 302 (1895). U.S. 193 Perrin v. United States, 444 U.S. 37, 42 (1979); see also Taylor, 495 U.S. at 593-96; Bell v. United States, 462 36~2 (1983). U.S. 356, 25

26 The fact Justice Scalia's discussion on this point "was [not] criticized" by the Sweet Home that 194 should be taken as an endorsement by the majority because this discussion was majority, not of the ESA. And, of course, the persuasiveness of the actual statutory irrelevant given language is strongly a dissent. by its status as opinion Justice Scalia's limited with asserted the court argument "is at odds that the common law CITGO government's The 195 definition the MBTA regulations." assertion The court's of is both technically 'take' in inaccurate is technically because regulations in Part IO of It substantively inaccurate and wrong. apply are regulations," they are generic definitions that "MBTA to all of FWS's not C.F.R. 50 196 wildlife court's assertion is wrong substantively because laws. definition of "take" The the in C.F.R. found 50 definition" is consistent with 10.12 "common law not described by the § the court. does not limit "take" to only the reduction of wild animals It human control. Instead, it to includes "pursue," and "wound," which would not in and "kill," themselves constitute of "take" Sweet his Even Justice Scalia acknowledged in conception. dissent in court's narrow the in Home words in the ESA's statutory definition that "take" expanded the word "take" similar of the law definition-although from common the minimized of this fact by he importance the expansion as "slight[]," "not unusual[]," and in the service characterizing merely of 197 the "process clarifying that is included in definition. taking" More importantly, the of the verbs Sweet expressly noted in some of the Home included in the ESA's statutory majority that definition "take," including of and "wound," are inconsistent with the asserted "pursue" 198 of "take." definition Thus, because the applicable regulatory ''take" of definition" "established includes these terms, it undermines, rather than supports, the CITGO court's position. In any even case, the CITGO conclusion with respect to "take" were correct, the if court's question court "kill" would remain. Had the of actually grappled with the the of scope "kill," there would have been little basis of it to conclude that "kill" should be for prohibition applying only in a hunting and poaching as There is certainly no common- interpreted context. definition suggesting that wildlife can only be killed by hunters. The court's opinion did law "kill" but the analysis under of would be the same, a footnote the result include that suggesting 199 court First, the CITGO stated that the court in FMC dicta. footnote that is unconvincing whether "kill" has any independent meaning in this context. Quite questioned from failing apart to the basic canon acknowledge statutory a statute to avoid interpreting of in a way construction 200 renders any word superfluous or unnecessary, that the CITGO court failed to note that the court in upheld application of the "kill" prohibition to an instance of incidental take. FMC Conservation CITGO argued that because another statute, the Migratory Bird court Second, the 4 19 CITGO, 801 F.3d at 489. 195 at n.11 (citing 50 C.F.R. § 10.12); see Id id at 491. also 196 to C.F.R. see also id at§ IO.I (listing the eight 50 § 10.11; which the "General Provisions" of Part 10 statutes apply). 197 515 U.S. at 718 (Scalia, J., dissenting). 198 515 at 698 n.10; see also Bean and Rowland at 213, U.S. note 96 ("the terms 'wound' and 'kill' implied an supra intent to prohibit activities based on their consequences rather than the intent of the responsible for them."). persons 99 1 801 F.3d at 489 n.10. CITGO, ioo 2A NORMAN J. SINGER & J.D. SHAMBlE SINGER, STATUTES AND STATUTORY CONSTRUCTION§ 46:6 (7th ed. 2008). 26

27 201 Act, to include "kill," defines "kill " may have little independent force. I conclude, "take" , that the however inclusion " of definition of "take" in that statute indicates that in "kill the of "take." Finally , the abandoned common-law conception had Congress the already narrow mischaracterized seriously footnote CITGO comi's footnote opinion in Sweet 10 of the majority that "most stated majority The Home. in the ESA of' definition "refer to the terms ' s take 202 The majority did not say that "kill" ' harm[.]' " more than does frequently deliberate actions 3 opposite majority later reached the the conclusion.2° and description, that fits the Some court's remaining discussion of "take" might also be viewed as applying to of CITGO ," but discussed below , this analysis is also flawed. For example, the court claimed that it "kill as 204 the decision in Seattle Audubon. was Circuit Ninth following , however , court CITGO The distinction than that made by the Seattle Audubon court. As discussed above , made a different distinguished Seattle direct and indirect (habitat modification) take, and thus Audubon between FMC of and Corbin Farm Service. than rejected , the holdings distinguished expressly , rather Audubon should not be read as holding that direct incidental taking or killing, such as that Seattle 20 5 at issue is not prohibited by the MBTA. in , CITGO CITGO court claimed to be The also 206 indicate US Forest Service, v. but failed to that the Ass County 'n following Newton Wildlife 207 in that case discussion relevant of its use of "indirectly," case and in any is is unclear because 208 . merely dicta 1 20 16 § 715n. U.S.C. 202 at 698 n. 11 ( emphases added). 515 U.S. 203 at I. Id. 70 204 , 801 CITGO at 488 -8 9 . F.3d 205 conclusion is supported by the Ninth Circuit ' s recent decision in This our Cmtys. Found. , 825 F . 3d 57 I . Protect That involved a challenge to a right of way that the Bureau of Land Management (BLM) issued for a wind- case the by BLM violated the MBTA and that APA claimed not obtaining authorization to facility. energy Plaintiffs take the birds incidentally would die as a result of the operation of the that facili ty. The Ninth Circuit held that wind there no violation because the prohibitions of the MBTA do was apply to agencies that act in a purely regulatory not capacity. Id. at 586. The court would not have needed to reach this conclusion if the CITGO court 's interpretation of Seattle correct: the Ninth Circu it could have simpl y followed its own precedent and held that the Audubon was , the MBT A. Instead Ninth Circuit noted that BLM 's , and prohibited by the merely therefore not was take incidental not " directly or pro x imately cause " the take , id. , thus recognizing and applying the correct actions would Sea udub of on' s holding. See also Protect our Cm tys. Found. v. Black, No . 14-cv-2261 JLS understanding ttle A has 14 . , at Cal. Mar. 29 , 2016) (stating that FWS n.8 (S a uthority to authorize incidental take under the (JMA) D. . MBTA) 206 , 80 I F.3d at 488 . CITGO 207 113 , I I 5 (8th Cir. 1997) (stating that "c onduct , such as timber harvesting , that indir ectly results 110 the F.3d in of birds " is not subject to migratory liability) ( emphasis added) . strict death 208 (" Our conclusion s about the apparent scop e of [the] MBTA are nece ssa rily tentative because we lack the Id. to of Fish and Wildlife Service ."). Sev era l legal commentators reviewing the applicability of the MBTA the views the error, arguing that the Eighth and same Circuits are part of a split in Ninth incidental take have repeated this MBT of the Fifth Circuit in holding that the joining A does not prohibit take outside the realm Circuit Courts , the and the Second and Tenth Circuits holding that , with MBT A prohibits incidental take. S ee, hunting poaching g., Sara Orr & Jennifer Roy , Court Limits e. Bird Tr eaty Act Applicability to Incid ental Tak e, Latham's Migrato1y Clean Law Report , Sept. 17 , 2015, available at Energy :// www . / environmental -and - http Circuits Ninth and im its-m igratory -bird-treaty-act-appl icabi I ity-to-inc idental-take / ("the Eighth - l /court approvals to be the scope of the MBTA should George, limited Gerald exclude incidental take") . But cf that have concluded Migrato1y Bird Treat y Act Narrowly Int erpret ed: th e Fifth Circuit Joins th e Eighth and Ninth Circuits , Energy & Environmental Blog , Sept. I 0 , 2015 , available at Law - // www.energven vi ron men ta I law .com /20 15 /09 / I 0/m i gratory-b ird-treaty-act-narrowly - i nterpreted -the -fifth http: it-joins-the-ei ghth -and - n i nt h-circuits / (correctly describing the ci rcu narrow holdings of the Eighth and Ninth Circuit 27

28 The CITGO compared the MBTA to the ESA and the MMP A, statutes in which, the court court of "take" by including terms Congress the common-law definition expressly asserted, modified 209 or indirect harm to animals." "Harm and and "accidental "harass," covering like "harm" thus or unintentional acts terms it wishes to the negligent include uses when harass are Congress definition within the these words, 'take' assumes 'take.' common law of Without its 210 the words on which the court relies, "harm" definition." "harass," do not and However, implicate incidental any more than does "take" itself. As with "take," harmful necessarily take or be at protected animal species directed be incidental in nature. may harassing acts and take-as a term that Congress uses when Moreover, to prohibit incidental "kill" is also it wishes did the MBTA. Thus, the MBTA's take in is narrower than that of the Congress prohibition not because the MBT A requires scienter. Rather, as held by Seattle ESA-but the Audubon, of"harm" "harass" in the MBTA and from applying to indirect (habitat exclude it exclusion take. modification) treatment of Congress's mandate of court's exception for take incidental to CITGO an The 211 is likewise activities military-readiness unconvincing. failed grapple with court simply The to is interpretation court's the if entirely fact been have would legislation that the unnecessary directed if that commercial activities not And at migratory birds Congress thought correct. industrial excluded of MBT A, it would not have activities" the "operation the outside should fall 212 the activities." same At readiness "military time, the court of the from definition government's argument, stating that the government's position was that the mischaracterized the 213 of the MBTA. It scope legislation "implicitly military-readiness hugely expanded" the and would made little sense for the government have stake out such a position against the to backdrop of several decades of agency practice interpreting the MBT A to prohibit incidental take. In the military-readiness legislation fills the same role with respect to the MBTA as fact, ESA: legislation do to the original 1973 ESA in both cases, the later 1982 amendments the to original legislation the scope of the if was as narrow as some were no make would sense 214 arguing. later legislation did not change the the of the original enactment at all, Thus, scope rather it helped to clarify the proper interpretation but the enactment. of Similarly, original the dismissal import of the 1986 amendment to the felony provision and the of Mahler's 215 1986 the amendment fails to acknowledge the fact that language report associated committee The and Farm FMC cases. Corbin 1985 Kesterson Hearings clearly Service post-dates the modification Courts to "apply the MBT A to habitat declining that would foreseeably result in bird mortalities."). as But, as discussed above, neither the Eighth nor Ninth Circuits have clearly and expressly held that the MBTA does not apply incidental take. To be sure, there is currently a split to the on whether the MBT A prohibits in Circuits take, but it can only be accurately described as a split between the Second and Tenth Circuits on one side incidental of on Circuit on the other (and even the Fifth Circuit has not definitively ruled and whether the prohibition the Fifth "kill" to incidental take). applies 209 CITGO, 801 F.3d at 490. 210 Id. at see also id. at 490. 491; 211 Id. 490-91. at 212 Stump National Defense Authorization Act for Fiscal Year Bob § 315(f)(2)(B), Pub. L. No. 107-314, 116 2003, Stat. 2509 (2002). 213 CITGO, 801 F.3d at 490-91. 214 take Sweet Home, 515 U.S. at 700-01 (1982 amendments allowing FWS to authorize incidental See supported interpretation incidental take prohibited). that 215 Mahler, 927 F. Supp. at 1580-81, 28

29 demonstrate that knew of the executive branch's interpretation of the MBTA at the Congress 216 time. CITGO court's rejection of FMC and Apollo Energies depends entirely on the Similarly, the erroneous CITGO ''take." The CITGO court claimed that FMC and conclusion court's regarding 211 mens and actus reus. CITGO In fact, the confused court committed Apollo Energies rea a sci of it accused its sister circuits, by grafting which enter component onto the precisely error 218 the The court was correct insofar as prohibited fact that the MBTA is a strict-liability act. the does mean that everything is a violation crime not MBTA-the must carry out the defendant of act. The court, however, misunderstood what the prohibited act is. Under the prohibited the a protected any affirmative act that proximately causes die. bird to it is MBT A, 219 The argument that the FWS interpretation would lead to "absurd results" CITGO court's is belied the experience by the of As discussed above, the government has last 45 years. take. position the MBTA applies to incidental that Contrary to the court's taken consistently the societal impact has been minimal, and largely positive. Oil pits have been netted, intimation, the it would made dangerous, and bird mortality reduced from what less otherwise be, lines power in bringing MBTA charges. FWS OLE and all have beenjudicious at little societal cost. DOJ on enforcement above, FWS is currently engaged in a process to reduce reliance And, noted as by authorization for incidental take in appropriate circumstances. discretion providing Mahler court made two related arguments, both of which are lack First, the unconvincing. The context a history MBT A prosecutions in the of of does not have the significance that logging Mahler attributed to it. An agency's decision not to prosecute is generally committed to the 220 Although it is true that the government has generally not agency's discretion. absolute 221 did the court not mention the under bird the MBTA, prosecuted deaths logging-related 222 government The has contexts. other in activity enforcement government's incidental-take explained how its enforcement priorities relate to logging and subsequently publicly A MBT 223 violations. role court's to recognize Mahler proper failure of enforcement discretion The the the court to use unsupportable circular logic. In effect, the court argued that the MBTA led the apply because the government has not enforced logging to cannot in that context, and MBTA 216 Moon Lake, 45 F. Supp. 2d at 1075; see also Andrus v. Allard, 444 U.S. 51, 57 (1979) (it is particularly See interpretation). that reviewed and amended statute without disturbing agency twice The Congress relevant Hearings addressed whether the operation Kesterson a contaminated reservoir that attracted and poisoned of See, e.g., Drainage Problems and Contamination at Kesterson Reservoir: Hearings violated the MBTA. waterfowl House the Water and Power Resources of the on Comm. on Interior and Insular Affairs, 99th Subcomm. before 10-19 et (1985). Cong. seq. 217 CITGO, F.3d at 492. 801 218 1 LaFave, Substantive Criminal Law§ 5.2(a) (2d ed. 2003) ("intention to See a specified result'' is an produce element mens reus). or scienter, not actus of rea 19 CITGO, 801 F.3d at 494. 2 220 Hecklerv. Chaney, 470 U.S. 821,831 (1984). 21 2 927 F. Supp. at 1581. Mahler, 222 Supp. Lake, 45 F. See 2d at 1083. Moon 223 Response of the United States of America to the Submission Made by the Alliance for the Wild Rockies, et al. on (Feb. ofthe North American Agreement 14 Environmental Cooperation, at 11-18 29, 2000), Under Article available at _ 2000/8475 _99-2-rsp-e.pdf (last visited Dec. 2016). 29

30 then implies the government's enforcement of incidental take in other contexts is erroneous that those contexts indistinguishable from logging. because are the found conclusion in what it characterized as its "apparent lack of supp01i Mahler for Second, 224 applies under the MBTA if the MBTA liability to incidental take. limits meaningful any " on , failed to recognize that meaningful Mahler, on liability under the MBTA do however limits Those include: (1) legal authorization in accordance with regulations promulgated exist. limits 225 2(a) section under of (2) consistent with the Audubon , the MBTA ' s MBTA; Seattle only to take that is proximately caused by an action ( direct incidental take as applicability 6 22 enforcement and (3) DOJ discretion , by which FWS and to take) ; incidental opposed indirect address possible concerns by taking into account the foreseeability may due-process the of 227 take. limitations more than meet any need for Together, principle to limit these a "reasonable 228 broad reading " the MBTA. of the light , I reach the above analysis In the following conclusions . First , using all of the traditional of of context construction , and in the broad statutory of section 2 of the MBT A, the rules prohibitions a strict-li "take " kill " unambiguousl y appl of " and ability basis (except in the y on the of felony prosecutions and baiting cases) and to incidental take. Second , even if context traditional common aw meaning "take " introduces some ambiguit y as to whether that term -l of incidental , " kill " is unambiguous. Third , even to applies take " and "kill " were both if "take reading ambiguous context , I conclude that the best this considered in the MBTA is that these of apply to incidental take. Fomih , I conclude , consistent prohibitions with Seattle that Audubon, causal the an action and indirect take between connection birds (for example, take migratory of liability for attenuated habitat modification) of to is too effects the by solely caused long-term attach. VI. CONCLUSION on the analysis above , I conclude Based the MBTA ' s prohibitions on taking and killing that migratory birds apply broadly to any activity , subject to the of proximate causation , and limits not to to ce1iain factual contexts. Therefore, those prohibitions can and do apply are limited incidental direct take. 4 22 er, . at . Supp Mahl 1582 . 927 F 225 16 U .S.C. § 704(a). 226 Seattl e Audubon ' s distinction between direct take and indirect take (e.g. , take caused solely by the long-term . Proximate of modification) reflect s principles of causation habitat causation requires an action to be effects sufficiently related to the result caused to make legal culpability appropriate . 227 Apollo Ener gies, 611 F.3d at 690 . See 228 See Mahler, 927 F. Supp . at 1582 - 83. 30

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