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In a proposed rule published May 7, 2021, the Biden Administration seeks to withdraw the Trump Administration’s Migratory Bird Treaty Act (MBTA) liability rule. The MBTA liability rule was published as a final rule on January 7, 2021, and provided the first regulatory definition of the scope of liability for take of migratory birds under the MBTA. Adopting one side of a court split, that rule interpreted the MBTA’s prohibitions as applying only to actions that are “directed” at migratory birds, and not to actions that “incidentally take” them. Comments can be provided on the proposal to withdraw the MBTA rule until June 7, 2021.
Monday, May 10, 2021
In a proposed rule published May 7, 2021, the Biden Administration seeks to withdraw the Trump Administration’s Migratory Bird Treaty Act (MBTA) liability rule. The MBTA liability rule was published as a final rule on January 7, 2021, and provided the first regulatory definition of the scope of liability for take of migratory birds under the MBTA. Adopting one side of a court split, that rule interpreted the MBTA’s prohibitions as applying only to actions that are “directed” at migratory birds, and not to actions that “incidentally take” them. Comments can be provided on the proposal to withdraw the MBTA rule until June 7, 2021.
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State officials are weighing the fate of Peeps, a tame Canada goose and Prior Lake celebrity whose owners said they unknowingly broke federal law by keeping him as a pet.
Peeps was adopted by Ron Hendrickson and his family as a pandemic diversion, Hendrickson said, after the gosling wandered across his field in Prior Lake a year ago. I thought, if the world is ending, what the heck? Hendrickson said of the decision to keep Peeps. Last year, we were so depressed.
But geese are protected under the Migratory Bird Treaty Act, a federal law that prohibits the killing, capturing, selling, trading or transport of protected migratory bird species without permission of the U.S. Department of the Interior and the U.S. Fish and Wildlife Service, said Tina Shaw, a spokeswoman for the U.S. Fish and Wildlife Service.
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Last week, the Fish and Wildlife Service issued a proposed rule that would revoke the rule promulgated by the Trump Administration in January 2021 and return to the prior status quo, in which the incidental take of birds subject to the Migratory Bird Treaty Act constituted a violation of the Act. I’m not taking a position on the proposal. I don’t think it’s as clear-cut as my friends in the environmental movement seem to believe. To me, it’s not crazy to conclude that the MBTA was intended to apply only to intentional takes, rather than including incidental takes.