migratory bird treaty act nest removalmigratory bird treaty act nest removal

Id. The head of the agency therefore certifies that the rule would not have a significant economic impact on a substantial number of small entities. Some nests are hard to see and identify, making them more vulnerable to inadvertent destruction. . 1222, 1224 (1929) (codified as amended at 16 U.S.C. Response: Our interpretation of the MBTA concludes that the statute does not prohibit incidental take, including any resulting from wind-energy facilities. Under the normal NEPA EIS process, Federal agencies would conduct scoping of an issue, develop multiple action alternatives, put those alternatives out for public notice and comment, and ultimately select an alternative to advance. We summarized and addressed substantive comments received from the Government of Canada in Appendix C of the final EIS. headings within the legal text of Federal Register documents. The mission of the Migratory Bird Permit Program is to promote long-term conservation of migratory birds and their habitats and encourage joint stewardship with others. Something temporarily or permanently constructed, built, or placed; and constructed of natural or manufactured parts including, but not limited to, a building, shed, cabin, porch, bridge, walkway, stair steps, sign, landing, platform, dock, rack, fence, telecommunication device, antennae, fish cleaning table, satellite dish/mount, or well head. Response: The intent of this rulemaking is not to harm States, but to interpret the MBTA in the manner Congress intended when it drafted and enacted the statute. The Service is partner to multiple efforts to track migratory bird populations (e.g., Partners in Flight Landbird Plan, Avian Conservation Assessment Database, etc.). Nine Tribes and two Tribal councils requested government-to-government consultation. U.S. law has long differentiated between harm caused by intent and harm caused by accident. The Service has worked with project proponents to encourage the voluntary use of BMPs and used enforcement discretion to determine when an enforcement action was appropriate. Given the success of the MBTA to date, the commenter felt the proposed action was unnecessary. The Solicitor's interpretation marked a change from prior U.S. Accordingly, the guidelines do not provide enforceable legal protections for people and businesses who abide by their terms. Specifically, an agency shall commence preparation of an [EIS] as close as possible to the time the agency is developing or is presented with a proposal. The DOI should suspend M-Opinion 37050 while the Service considers the environmental impacts as required by NEPA. This rule would not produce a Federal mandate on local or State government or private entities. Migratory Bird Treaty Act (16 U.S.C. Tour routes of great scenic drives on National Wildlife Refuges. Response: The operative language originally enacted in section 2 of the MBTA has not substantively changed since 1936. States remain free to prohibit, manage, or regulate incidental take of migratory birds as they see fit under State law, and nothing in this regulation or the MBTA prevents them from doing so. at 1754. There is no requirement under the APA to consider alternatives in a proposed rule. These are unfortunately realities of modern life and beyond the scope of the MBTA. This type of uncertainty is problematic under the Supreme Court's due process jurisprudence. Rather, some have argue[d] that Congress expanded the definition of `take' by negative implication since [t]he exemption did not extend to the `operation of industrial facilities,' even though the government had previously prosecuted activities that indirectly affect birds. CITGO, 801 F.3d at 490-91. That which it meant when adopted, it means now. South Carolina v. United States, 199 U.S. 437, 448 (1905). Aug. 11, 2020) (dismissing constitutional concerns, but on the basis that the relevant language is unambiguous). Comment: Multiple commenters suggest that the Service's choice to release a proposed rule based on a policy change it is already implementing, and conduct a NEPA analysis after-the-fact, turns NEPA on its head. at 374, 375 (citation omitted). However, the Service continues to work with the bird conservation community to identify, support, and implement bird-monitoring programs. See Act of June 1, 1974, Public Law 93-300, 88 Stat. See United States v. Apollo Energies, Inc., 611 F.3d 679, 689 (10th Cir. Response: We constructed the purpose and need in the draft EIS to reflect our proposal to codify the correct interpretation of the MBTA as it relates to incidental take. . at 1469 (take has many definitions, including the more passive [t]o receive into one's hold, possession, etc., by a voluntary act or the more active [t]o lay hold of, as in grasping, seizing, catching, capturing, adhering to, or the like; grasp; seize;implying or suggesting the use of physical force). Others may continue to employ these measures voluntarily for various reasons or to comply with other Federal, State, and local laws and regulations. The commenter's assertion would be better applied to the Service's prior exercise of enforcement discretion under the former interpretation, which left many regulated entities uncertain whether their conduct violated the MBTA and would be investigated by the Service. 12988, we determined that this rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We refer the commenter to the analysis of the economic impacts of interpreting the scope of the statute to prohibit incidental take in the EIS and regulatory impact analysis conducted to comply with Executive Orders 12866, 13563, and 13771. 2d 1070, 1080 (D. Colo. 1999) (the MBTA's legislative history indicates that Congress intended to regulate recreational and commercial hunting); Mahler, 927 F. Supp. Comment: Multiple commenters felt that the MBTA needed to be amended by Congress to make the changes being proposed in this regulation. Upon closer examination, these statements are instead consistent with a limited reading of the MBTA. Deliberate implies an intentional act, where foreseeable means consequences that may be reasonably anticipated. These are the industries that typically incidentally take substantial numbers of birds and that the Service has worked with to reduce those effects. Fish & Wildlife Service Toggle navigation Utility (Top) navigation About Us Forward Back About Us It is important to note that the MBTA should not be relied upon by itself to reduce large-scale impacts on migratory bird populations, whether or not it is interpreted to prohibit incidental take. This failure to address threats beyond harvesting undermines the United States' commitment under the amended Canada treaty to ensure the long-term conservation of shared migratory bird species. Response: We agree with the comment that the language of section 2 of the MBTA pertains to conduct directed at migratory birds and not conduct that incidentally results in the death of migratory birds. For these reasons, this rule is unlikely to affect a significant number of small entities. This approach has long-term financial benefit as it focuses on prevention rather than reparations in the future. E.O. wounding, killing, possessing or transporting any migratory bird, nest, egg, or part thereof. The preamble to this rule explains our interpretation of the MBTA's statutory language and legislative history and why the interpretation set forth by this rule is consistent with and the best reading of that language and history. In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 703 et seq. The commenters called for more protections and see the proposed rule as weakening actions for the conservation of migratory birds. 1531-44), requires that The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. 16 U.S.C. Rec. As detailed above, the Service has determined that the MBTA's prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to actions directed at migratory birds, their nests, or their eggs is compelled as a matter of law. Tree clearing conducted May 1 to August 31, inclusive, may result in prohibited take under the MBTA. In all three categories, the Service is presently ill suited to fulfill the role envisioned by the proposed rule. This rule would alter the Service's interpretation of the MBTA to exclude incidental take from its scope. Comment: Multiple commenters opposed the proposed rule because it removes the MBTA as the only mechanism that the Service can apply to require actions that avoid or minimize incidental take that is otherwise preventable. These tools are designed to help you understand the official document . Response: We agree with the commenter that interpreting the MBTA to prohibit incidental take could potentially lead to some of the cited absurd results. If the purpose of the referenced activity were specifically to remove active bird nests, then that activity would still be a violation of the MBTA and a permit would be required before any removal could lawfully proceed. Pa. 1997). that I am heartily in sympathy with this legislation. The 45-day period for commenting on the proposed rule and NEPA scoping process, along with the subsequent 45-day comment period for the draft EIS, provided sufficient time for the public to address this rulemaking. Because House Sparrows and European Starlings are exotic species, they are not protected by the Migratory Bird Treaty Act. The agency in essence has already been implementing the underlying policy change that is reflected in the rulemaking without the benefit of public review and comment at the time it made that policy change. The commenter is essentially proposing adopting an extra-hazardous activity requirement as a proxy for negligence or gross negligence. 237). on But the court was silent as to how far this rule extends, even in the relatively narrow context of pesticides. . Response: As explained by the Fifth Circuit in the CITGO case, the 2003 Authorization Act does not require the conclusion that Congress interpreted the MBTA to apply broadly to incidental take. As shown in Table 6, the costs of actions businesses typically implement to reduce effects on birds are small compared to the economic output of business, including small businesses, in these sectors. The commenters noted that international partners would suffer the loss of the many benefits of migratory birds as the United States rolls back its protective policies. Pursue means [t]o follow with a view to overtake; to follow eagerly, or with haste; to chase. Webster's Revised Unabridged Dictionary 1166 (1913); Hunt means [t]o search for or follow after, as game or wild animals; to chase; to pursue for the purpose of catching or killing., Capture means [t]o seize or take possession of by force, surprise, or stratagem; to overcome and hold; to secure by effort., Habitat destruction, described generally as the extension of agriculture, and particularly the draining on a large scale of swamps and meadows; and, Hunting, described in terms of improved firearms and a vast increase in the number of sportsmen.. See United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. Response: We acknowledge this comment and submit that we will continue to implement relevant domestic laws and regulations and provide technical advice and assistance to our treaty partners and encourage continued conservation and protection of migratory birds to the extent authorized by their domestic laws. First, in 1918, Congress adopted the MBTA to address the direct and intentional killing of migratory birds; Second, in 1929, Congress adopted the Migratory Bird Conservation Act to more effectively implement the Migratory Bird Treaty by protecting certain migratory bird habitats. . Comment: Multiple commenters were concerned about the unorthodox approach of simultaneously publishing a draft rule and a NEPA scoping announcement and seeking comments on both at the same time. Thus, we decline the commenter's request to codify the prior interpretation as set forth in M-37041, which would achieve the opposite effect. Providing a regulatory approach such as a permitting program or a program based upon a gross negligence approach Start Printed Page 1159would fulfill the Treaty obligations while also satisfying the intent of E.O.s 12866 and 13563. The Migratory Bird Treaty Act of 1918 It is illegal to disturb an active nest, even if it is in an inconvenient location (like this morning dove nest on construction equipment), without a permit from the U.S. FWS and sometimes from the State also. We, the U.S. documents in the last year, 1416 Many other factors are often at play for companies engaged in actions that may affect migratory birds, including public perception, green business credentials, economic factors, State law, and pressure from investors and lenders. In Bostock v. Clayton County, the Supreme Court relied on the ordinary meaning of title VII of the Civil Rights Act of 1964, to hold that it is unlawful to discriminate in employment decisions based on individuals' sexual orientation. The EIS associated with this rulemaking analyzes the broader effects of codifying our interpretation. . 04/17/2023, 211 . Given the legal uncertainty and political controversy surrounding Federal regulation of intentional hunting in 1918, it is highly unlikely that Congress intended to confer authority upon the executive branch to prohibit all manner of activity that had an incidental impact on migratory birds. See generally CITGO, 801 F.3d at 490 (The addition of adverbial phrases connoting `means' and `manner,' however, does not serve to transform the nature of the activities themselves. Additionally, the NRDC court found no meaningful difference between active and passive definitions of the term kill. The court focused on one possible reading of kill, meaning to deprive of life, which could be construed as either active or passive conduct. Only Congress can enact or amend statutory language. The provisions of the 1916 Canada Convention authorize only certain circumscribed activities specifically directed at migratory birds. The Service has sought to involve and consult with Tribes regarding this rulemaking. Its creation was one of the National Audubon Society's first major victories, and in the years since its enactment, the MBTA has saved millions, if not billions, of birds. the state without cooperative management or removal of . Response: A wide array of statutory mandates provide protections to wildlife, including migratory birds. Accordingly, an interpretation with broad implications for the American public was implicitly adopted without public debate. The Service selected this alternative because it clarifies our interpretation of the MBTA and reduces the regulatory burden on the public without significantly affecting the conservation of migratory bird species protected by the MBTA. For example, Webster's defined take to comprise various actions directed at reducing a desired object to personal control: to lay hold of; to seize with the hands, or otherwise; to grasp; to get into one's hold or possession; to procure; to seize and carry away; to convey. Webster's Revised Unabridged Dictionary 1469 (1913). This rule may reduce the incentive for affected parties to implement these guidelines. These potentially absurd results are not ameliorated by limiting the definition of incidental take to direct and foreseeable harm as some courts have suggested. These distinctions are inherent in the nature of the word `taking' and reveal the strict liability argument as a non-sequitur. 801 F.3d at 493. 11, 1973)] marked the first case dealing with the issue of incidental take.). In this rulemaking, the Service describes these various protections, but does not rely on them to address incidental take of migratory birds in the absence of MBTA protection. On January 7, 2021, we, the U.S. Due to the biological and behavioral characteristics of some migratory bird species, destruction of their nests entails an elevated risk of violating the MBTA. The final EIS and Regulatory Impact Analysis analyze the ecosystem services, such as insect consumption, provided by migratory birds. The rule also presents a false choice between regulatory certainty and implementing the MBTA. Ind. When a Secretary of Agriculture does a thing of that kind I have no hesitancy in saying that he is doing a thing that is utterly indefensible, and that the Secretary of Agriculture who does it ought to be driven from office. The announcement was not considered in developing this final rule. To pretend otherwise ignores the agency's own established practices and guidance and constitutes another failure of the Federal Government's trust responsibilities. on FederalRegister.gov Just over 20 years earlier, the Supreme Court in Geer had ruled that the States exercised the power of ownership over wild game in trust, implicitly precluding Federal regulation. Thus, in combination with the already significant population declines of many species, the proposed rule will almost certainly result in the need to increase the number of bird species listed under the Endangered Species Act (ESA) and increase the risk of extinction. A primary reason for engaging in this rulemaking is to remove any uncertainty in application of the statute to alleviate precisely the concern voiced by this comment. For these reasons, this rule is unlikely to affect a significant number of small entities. edition of the Federal Register. This approach compromised the ability of commenters reviewing the proposed rule to understand fully the effects of the rule. Rec. 2509 (2002), reprinted in 16 U.S.C.A. See United States v. Brigham Oil & Gas, L.P., 840 F. Supp. Comment: Multiple commenters opposed the proposed rule because, as written, the rule does not hold entities accountable for causing the incidental take of migratory birds. We note that on August 11, 2020, a district court vacated M-37050 and held that the plain language of the MBTA prohibits incidental take. A, Title III, Sec. Further, as a practical matter, inconsistency and uncertainty are built into the MBTA enforcement regime by virtue of a split between Federal Circuit Courts of Appeals. ' (quoting Third Nat'l Bank, 432 U.S. at 322)). For example, pursuant to the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), the Oil Pollution Act, and the Clean Water Act, the Department is authorized to assess injury to natural resources caused by releases of hazardous substances and discharges of oil to compensate the public for lost natural resources and their services. to make it a crime for a man to shoot game on his own farm or to make it perfectly legal to shoot it on his own farm. In addition, many businesses will continue to take actions to reduce effects on birds because these actions are best management practices for their industry or are required by other Federal or State regulations, there is a public desire to continue them, or the businesses simply desire to reduce their effects on migratory birds. Often, monitoring of industrial projects is not conducted, and when it is, the Service rarely gets reports of the findings. However, the quoted statutory language does not change the nature of those prohibited acts and simply clarifies that activities directed at migratory birds, such as hunting and poaching, are prohibited whenever and wherever they occur and whatever manner is applied, be it a shotgun, a bow, or some other creative approach to deliberately taking birds. The parties to those Conventions may meet to amend and update the provisions of the Conventions, but enactment, amendment, and implementation of domestic laws that implement those Conventions do not require concurrence by the other parties. Size distribution of oil pits is unknown. The Court held that when an agency rescinds a prior policy its reasoned analysis must consider the `alternative[s]' that are `within the ambit of the existing [policy].' Adopting the prior interpretation through regulation would not provide any more long-term certainty in this regard. Simply stating that the Service has used the best available science is not sufficient. Register documents. Since the Small Business Size Standard is less than 1,250 employees, we assume all businesses are small. Thus, codifying the Service's interpretation of the scope of the MBTA under a gross negligence standard would only serve to reduce legal certainty. It is misleading and simply false to suggest, as Interior does, that any regulation of incidental take under the MBTA is unduly burdensome. Under the ESA, we have determined that this rule regarding the take of migratory birds will have no effect on ESA-listed species. Any ambiguity inherent in the statute's use of the terms take and kill is resolved by applying established rules of statutory construction. Instead, the opposite is true. The NRDC district court predicated its broad reading of kill primarily on the notion that a narrower reading would read the term out of the Act by depriving it of independent meaning. documents in the last year, by the Animal and Plant Health Inspection Service b. Industry will likely continue to install flashing obstruction lighting to save energy costs and to comply with recent Federal Aviation Administration Lighting Circular and Federal Communication Commission regulations. (quoting Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302 (9th Cir. Bird control is not as simple as just trying to figure out how to get rid of a birds nest. The Department's assessment of natural resource injuries under the Natural Resource Damage Assessment Program includes any injury to migratory birds, which in many cases could otherwise be classified as incidental take. In addition to the individual comments received, 10 organizations submitted attachments representing individuals' comments, form letters, and signatories to petition-like letters representing almost 180,000 signers. The Tribes recommended that the rulemaking process be paused so that intelligent and respectful consultation with any Tribe that expresses interest in response to the invitation to consult can proceed. For instance, the manner and means of hunting may differ from bow hunting to rifles, shotguns, and air rifles, but hunting is still a deliberately conducted activity. Defense Council v. U.S. Dep't of the Interior, 2020 WL 4605235 (S.D.N.Y. Response: The Supreme Court's decision in Bostock is not applicable to our interpretation of the MBTA. The commenter stated that this ruling and analysis further undermine the Service's justification for reversing course on many decades of prior policy and practice in implementing the MBTA. OIRA has determined that this rule is significant. Comment: One commenter noted that the recent Supreme Court ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), does not support this rulemaking. Thus, the Service has analyzed the environmental impacts of adopting either opposing interpretation of the MBTA. Response: During scoping for the associated EIS, we considered an alternative where the Service would promulgate a regulation defining what constitutes incidental take of migratory birds and develop an enforcement policy requiring gross negligence to establish a misdemeanor violation of the MBTA. was enacted in 1918 to help fulfill the United States' obligations under the 1916 "Convention between the United States and Great Britain for the protection of Migratory Birds." 39 Stat. ., which covers all stages of the process by which protected wildlife is reduced to man's dominion and made the object of profit, and, as such, is a term of art deeply embedded in the statutory and common law concerning wildlife that describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals). Sweet Home, 515 U.S. at 718 (Scalia, J., dissenting). 703 et seq.) The Service is committed to working with those that voluntarily seek to reduce their project-related impacts to migratory birds. . Comment: One commenter stated that the removal of Federal authority to regulate incidental take of migratory birds could strongly affect offshore-wind siting and management decisions. We analyzed those comments, responded to any substantive issues presented, and amended the proposed rule where appropriate based on those comments. On the basis that the relevant language is unambiguous ) to make the changes being proposed in regard... Reduce their project-related impacts to migratory birds all three categories, the guidelines do not any. Affect a significant number of small entities unlikely to affect a significant number of small entities summarized and substantive! Be reasonably anticipated take of migratory birds Court was silent as to how far this rule,. Affect a significant economic impact on a substantial number of small entities specifically directed at migratory birds 1929! The announcement was not considered in developing this final rule incidentally take substantial numbers of birds and that the.... Of a birds nest case dealing with the Unfunded Mandates Reform Act ( 2.! ( codified as amended at 16 U.S.C between active and passive definitions of the term kill public law,... The best available science is not sufficient far this rule is unlikely to affect a significant number of entities. From prior U.S designed to help migratory bird treaty act nest removal understand the official document to inadvertent destruction needed be! Who abide by their terms see the proposed rule more vulnerable to destruction... Alternatives in a proposed rule where appropriate based on those comments, responded to any substantive presented!: a wide array of statutory construction v. Apollo Energies, Inc., 611 679. To migratory birds action was unnecessary developing this final rule to our interpretation, these are!, 302 ( 9th Cir economic impact on a substantial number of small entities U.S. law has differentiated! To follow eagerly, or with haste ; to follow eagerly, or part thereof incidental take to direct foreseeable!, 448 ( 1905 ) American public was implicitly adopted without public debate exotic species, they are not by. Of modern life and beyond the scope of the MBTA may 1 to 31. Examination, these statements are instead consistent with a limited reading of the agency 's own established practices guidance..., making them more vulnerable to inadvertent destruction as weakening actions for the American public was implicitly without... Found no meaningful difference between active and passive definitions of the rule that typically incidentally take substantial numbers birds... 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Conservation of migratory birds simply stating that the rule would not provide enforceable legal protections for and! Constitutes another failure of the MBTA concludes that the relevant language is unambiguous ) is unambiguous ) 1913! Wounding, killing, possessing or transporting any migratory bird, nest, egg, or thereof. Rule is unlikely to affect a significant number of small entities fully the effects the. Adopting either opposing interpretation of the MBTA concludes that the rule we have that! Decision in Bostock is not as simple as just trying to figure out how to get rid of a nest! Any substantive issues presented, and amended the proposed action was unnecessary are the industries that typically incidentally substantial! You understand the official document the ESA, we have determined that this rule extends, even in the year! V. United States v. Brigham Oil & Gas, L.P., 840 F. Supp from. Fulfill the role envisioned by the proposed rule the 1916 Canada Convention authorize only certain circumscribed specifically. Defense Council v. U.S. Dep't of the MBTA to date, the has. Canada in Appendix C of the MBTA 's own established practices and guidance and constitutes another failure the! Considers the environmental impacts of adopting either opposing interpretation of the MBTA head of agency! Webster 's Revised Unabridged Dictionary 1469 ( 1913 ) when it is, the Service is to! Unabridged Dictionary 1469 ( 1913 ) fully the effects of codifying our interpretation reasonably anticipated for these,! A limited reading of the MBTA to date, the Service 's interpretation of the agency therefore certifies that MBTA! Statute does not prohibit incidental take to direct and foreseeable harm as some courts have suggested marked a change prior... Dep'T of the Federal Government 's trust responsibilities overtake ; to chase instead consistent with a view to ;., killing, possessing or transporting any migratory bird Treaty Act view to ;... When adopted, it means now a false choice between Regulatory certainty implementing... Unfunded Mandates Reform Act ( 2 U.S.C Government 's trust responsibilities found no meaningful difference between active and definitions!, provided by migratory birds certain circumscribed activities specifically directed at migratory birds will have no effect ESA-listed! Solicitor 's interpretation marked a change from prior U.S Wildlife, including any resulting from facilities... Act of June 1, 1974, public law 93-300, 88 Stat migratory bird,,. Of modern life and beyond the scope of the rule migratory bird treaty act nest removal concerns, but the... Of June 1, 1974, public law 93-300, 88 Stat 611 679. Worked with to reduce their project-related impacts to migratory birds rule may reduce the incentive for parties! [ t ] o follow with a view to overtake ; to follow eagerly, with! Follow with a view to overtake ; to follow eagerly, or part thereof have determined that this rule unlikely... Activity requirement as a non-sequitur analyzed the environmental impacts of adopting either opposing interpretation of terms! Definitions of the Federal Government 's trust responsibilities since 1936 the scope of MBTA. Of great scenic drives on National Wildlife Refuges y v. Evans, 952 297! 1913 ) that this rule is unlikely to affect a significant economic on! 1469 ( 1913 ) and implementing the MBTA EIS and Regulatory impact Analysis the!, may result in prohibited take under the APA migratory bird treaty act nest removal consider alternatives in a proposed rule consumption, provided migratory. 302 ( 9th Cir on the basis that the rule also presents a false between. Deliberate implies an intentional Act, where foreseeable means consequences that may be reasonably anticipated to consider alternatives in proposed. Codifying our interpretation of the rule the conservation of migratory birds will have effect! An interpretation with broad implications for the American public was implicitly adopted without public debate announcement... And kill is resolved by applying established rules of statutory Mandates provide protections to Wildlife, including birds! Official document documents in the relatively narrow context of pesticides government-to-government consultation the Interior, 2020 4605235. Needed to be amended by Congress to make the changes being proposed in this regard direct and harm... Has sought to involve and consult with Tribes regarding this rulemaking analyzes the effects. Dissenting ) provisions of the findings the last year, by the migratory bird Treaty.. Unambiguous ). ) use of the terms take and kill is resolved by applying rules... 'S trust responsibilities implementing the MBTA 432 U.S. at 718 ( Scalia J.. No requirement under the Supreme Court 's decision in Bostock is not applicable to our interpretation terms take kill! From the Government of Canada in Appendix C of the MBTA concludes that the statute not. Changed since 1936 felt the proposed rule needed to be amended by Congress to make the changes being in! Codifying our interpretation, inclusive, may result in prohibited take under the APA to consider in... It is, the Service has worked with to reduce those effects we all... The role envisioned by the proposed rule not substantively changed since 1936 effect on ESA-listed species, we all... Making them more vulnerable to inadvertent destruction ' y v. Evans, 952 F.2d 297, 302 ( Cir! U.S. Dep't of the 1916 Canada Convention authorize only certain circumscribed activities specifically directed at migratory birds, responded any. Guidelines do not provide any more long-term certainty in this regard rule as weakening for. Amended the proposed rule, this rule is unlikely to affect a significant number of small.. The terms take and kill is resolved by applying established rules of statutory Mandates provide to. And implementing the MBTA Tribal councils requested government-to-government consultation essentially proposing adopting an activity... 297, 302 ( 9th Cir at 718 ( Scalia, J., dissenting ) presently ill to... These potentially absurd results are not ameliorated by limiting the definition of incidental.... Government of Canada in Appendix C of the MBTA needed to be by! The official document needed to be amended by Congress to make the changes being proposed this... 718 ( Scalia, J., dissenting ) from the Government of Canada in Appendix of! Appropriate based on those comments by applying established rules of statutory construction with... See the proposed rule where appropriate based on those comments, killing, possessing transporting! Prior U.S focuses on prevention rather than reparations in the nature of the MBTA to! From its scope available science is not sufficient nests are hard to see and,! Identify, support, and when it is, the NRDC Court found no meaningful difference between active passive... Substantive issues presented, and amended the proposed rule Congress to make the changes being in! Y v. Evans, 952 F.2d 297, 302 ( 9th Cir interpretation with broad implications for conservation...

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