Migratory Birds

Finally, to refine its analysis the Court offers the following, "If the MTBA prohibits all acts or omissions that "directly" kill birds, where bird deaths are "forseeable," then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MTBA....The absurd results that the government’s interpretation would cause further bolters our confidence that Congress intended to incorporate the common-law definition of ‘take’ in the MBTA."

This decision raises question about the USFWS proposed permitting program of earlier this year in which it issued a Notice of Intent to develop a Programmatic Environmental Impact Statement (PEIS) to evaluate the potential impacts of a proposal to authorize incidental take of migratory birds. 80 Fed. Reg. 30032 (May 26, 2015).  If there is no such thing as an unintentional take,  then the purpose of a permit is questionable.  The USFWS has a couple of options to include continuing with the development of its permitting program and await D.C. Circuit litigation.  At issue also is whether the Service will continue its enforcement efforts under MTBA in those jurisdictions that do not agree with this decisions, those in the Second (Connecticut, New York, and Vermont) and Tenth Circuits (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah).