migratory bird treaty act nest removalbest stol kit for cessna 182

The Department should not be putting additional burdens on the public to respond at a time when the public is dealing with a global pandemic. ., 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). To better protect . Response: This approach would be very similar to establishing a policy to decline enforcement except in cases of gross negligence. E.O. Yet what is legal in the Fifth and Eighth Circuits may become illegal as soon as an operator crosses State lines into the bordering Tenth Circuit or become a matter of uncertainty in the Ninth Circuit. 2d at 1081 (quoting 56 Cong. of Regents, 385 U.S. 589, 599 (1967). because Congress gave `take' a broader meaning for that statute.). include documents scheduled for later issues, at the request We, the U.S. documents in the last year, by the Environmental Protection Agency The term extrahazardous activities is not found anywhere in the statute and is not defined by either the court or the Service. That does not mean, however, that Congress intended for strict liability to apply to all forms of human activity, such as cutting a tree, mowing a hayfield, or flying a plane. Comment: Multiple commenters supported the proposed action because a clarification of the scope of the MBTA was needed to avoid unnecessary regulation of industry projects. Nine Tribes and two Tribal councils requested government-to-government consultation. . In this Issue, Documents Therefore nest box monitors are legally allowed to remove or harass them. However, if the nest is abandoned or no . In the absence of national protection against incidental take, each State may seek to enforce or embolden existing State rules, thereby creating additional regulatory uncertainty for industry. Thus, we decline the commenter's request to codify the prior interpretation as set forth in M-37041, which would achieve the opposite effect. . any migratory bird. The key words regarding the prohibition of incidental take are at any time, by any means or in any manner. The words in any manner means regardless of whether it is purposeful or not. E.O. This prototype edition of the Industry would likely continue to use APLIC guidelines to reduce outages caused by birds and to reduce the take of eagles, regulated under the Bald and Golden Eagle Protection Act. Comment: Some commenters noted that the application of the MBTA as restricting anything other than intentional take of covered species offends canons of American criminal law and is perhaps most absurd when viewed in this light. Fish and Wildlife Service. Additionally, the M-Opinion and the proposed rule may inject more uncertainty about what is considered take compared to the previous decades of enforcement. Comment: One State expressed concern with the Service's attempt to alter its previous interpretation of the MBTA (M-37041) in the absence of review pursuant to NEPA. documents in the last year, 439 . Comment: The same commenter also noted that the recent Supreme Court ruling in Dep't of Homeland Security v. Regents of the University of California, 207 L. Ed. Sweet Home, 515 U.S. at 698 n.11 (Congress's decision to specifically define take in the ESA obviated the need to define its common-law meaning). at 1081 (quoting 56 Cong. 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. Thus, under common law [t]o `take,' when applied to wild animals, means to reduce those animals, by killing or capturing, to human control. Sweet Home, 515 U.S. at 717 (Scalia, J., dissenting); see also CITGO, 801 F.3d at 489 (Justice Scalia's discussion of `take' as used in the Endangered Species Act is not challenged here by the government . Protection of Migratory Birds: Hearing on H.R. at 5922-23; see also draft EIS at 3 (stating that the purpose and need for the action is to improve consistency in enforcement of the MBTA's prohibitions). Response: The Service appreciates the perspective of the entities that support this rulemaking. 703(a) (Unless and except as permitted by regulations made as hereinafter provided . Under the MBTA it is illegal to destroy a nest that has eggs or chicks in it or if there are young birds that are still dependent on the nest for survival. Trucking Ass'ns, 531 U.S. 457, 468 (2001). . 701-715) and section 8A(e) of the Endangered Species . The Act establishes an infrastructure and provides a source of funding, a competitive grant program. However, the proposed action is based on a legal interpretation of the MBTA. Fish and Wildlife Service (we, the Service, or USFWS), published a final rule (January 7 rule) defining the scope of the Migratory Bird Treaty Act (MBTA) as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA. In addition, a letter was sent through our regional offices to invite Tribes to engage in this proposed action via the government-to-government consultation process. Even visitation to these rookeries by people getting too close and subsequently disrupting nesting activities, can result in take since young birds may be frightened, leave their nests prematurely, become displaced, and die from starvation as their parents return only to the vicinity of the nest site. Response: Our interpretation of the MBTA concludes that the statute does not prohibit incidental take, including any resulting from wind-energy facilities. Testimony concerning the MBTA given by the Solicitor's Office for the Department of Agriculture underscores this focus: We people down here hunt [migratory birds]. Additional States may create new regulations to clarify that they have jurisdiction to regulate or otherwise oversee incidental take of migratory birds. Though we conclude that this rule will have some negative effects on populations of some species, we do not find that those effects will be substantial. Only those businesses choosing to reduce best management practices will accrue benefits. Since then, some of the Nation's governors, State legislatures, and mayors jointly requested a suspension of public comment periods Start Printed Page 1144during this national emergency. Response: The Service takes its Tribal trust responsibilities seriously and completed government-to-government consultation when requested. . Because the proposed alternative would have established a minimum mens rea of gross negligence before the Service could enforce the statute's misdemeanor provision, it would not be legally defensible. . The environmental consequences of the underlying sweeping policy change, which occurred in M-Opinion 37050, have yet to be held up to the mandates of NEPA. . Response: We disagree that this rulemaking will result in a substantial increase in the number of migratory birds killed. 1, De Adquir. Fish and Wildlife Service, Land-Based Wind Energy Guidelines 6 (Mar. 605(b). Comment: A few commenters stated that the Department of the Interior's reinterpretation of the MBTA removed a broad layer of protection to birds against industrial harms and requested that the Service explain in the preamble how such action compounds or alleviates the findings of certain reports and other available science and biological dataincluding but not limited to data from Partners in Flight, the State of the Birds report, Christmas Bird Counts, Breeding Bird Surveys, and project-level nesting and demographic information that the Service has on file. The Service acknowledged in the EIS that this rule may result in incremental declines in bird populations as companies learn they are not required to implement best management practices to decrease incidental take. Senator Smith, who introduced and championed the Act . 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. This type of uncertainty is problematic under the Supreme Court's due process jurisprudence. 927 F. Supp. Additionally, Article V prohibits the taking of eggs or nests of certain protected species, except for scientific and propagating purposes under regulations issued by the parties, and Article VI prohibits transport, import, and export of protected species except for scientific or propagating purposes. Tour routes of great scenic drives on National Wildlife Refuges. (1) You may humanely remove a trapped migratory bird from the interior of a residence or a commercial or government building without a Federal permit if the migratory bird: (i) Poses a health threat (for example, through damage to foodstuffs); . . Response: We agree with the commenter that interpreting the MBTA to prohibit incidental take could potentially lead to some of the cited absurd results. An intention found nowhere in its text, legislative history, or subsequent interpretation and implementation. 1981), aff'd on other grounds, 460 U.S. 300 (1983). Application of judicial Chevron deference to this rulemaking would provide more certainty than any prior position of the Department by increasing the likelihood that Federal courts will defer to the Service's interpretation. A takings implication assessment is not required. Thus, limiting the range of actions prohibited by the MBTA to those that are directed at migratory birds will focus prosecutions on activities like hunting and trapping and exclude more attenuated conduct, such as lawful commercial activity, that unintentionally and indirectly results in the death of migratory birds. Comment: The Service cannot conduct a credible NEPA process based on the timeline and chronology it has presented at this point. Assuming, arguendo, that the MBTA is ambiguous, the interpretation that limits its application to conduct specifically directed at birds is necessary to avoid potential constitutional concerns. This refusal to scrutinize an otherwise viable alternative that would further the agency's own purported objectivei.e., increasing certainty and consistency in enforcementwhile also promoting the conservation of migratory birds, constitutes precisely the kind of arbitrary and capricious conduct that the Supreme Court denounced in its ruling on the DACA rescission. . 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. The key remains that the actor was engaged in an activity the object of which was to kill or render a bird subject to human control. $4,000 initial and $50 annual for side setting. However, Congress did not do either of those things; instead, it temporarily exempted incidental taking caused by military-readiness activities from the MBTA prohibition and directed the Service to issue MBTA regulations to create a permanent authorization for military-readiness activities. Some nests are hard to see and identify, making them more vulnerable to inadvertent destruction. We have determined that this rule regarding the take of migratory birds will have no effect on species listed under the provisions of the ESA. Comment: One commenter focused on impacts of wind energy and suggested that the final rule should provide language that terminates wind-energy projects where the migratory bird mortality levels are not remediable. The commenter noted that as the Courts have advised, where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. The commenter claimed the Service appears concerned that strict liability for incidental takes of migratory birds does not provide adequate notice of what constitutes a violation and would lead to absurd results. We did not receive any information on that issue during the public comment period for this rule. Comment: The Service must complete a full analysis of the impacts of the Solicitor's M-Opinion itself, not just the incremental impacts of codifying the M-Opinion. on nests, by a bird species protected under the MBTA during previous inspections. This approach would include creating a definition of extra-hazardous activities and enforcing incidental take when it results from gross negligence. Both the underlying M-Opinion and the preamble to this rule analyzed the prior interpretation and explained both why it is incorrect and why it does not provide the same level of certainty or consistency in enforcement. 1702 (Aug. 16, 1916) (ratified Dec. 7, 1916) (Migratory Bird Treaty). The critically important ecological services these species provide include insect and rodent control, pollination, and seed dispersal. 2d 1202 (D.N.D. We analyzed those comments, responded to any substantive issues presented, and amended the proposed rule where appropriate based on those comments. As discussed above, collisions with buildings and cars are the second and Start Printed Page 1141third most common human-caused threat to birds, killing an estimated 599 million and 214.5 million birds per year, respectively. High variability in cost and need to retrofit power poles. Moreover, M-37050 is consistent with the Fifth Circuit appellate court decision in United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. The degree to which these small businesses may be impacted by the rule is variable and is dependent on location and choice. The commenter asked whether the Service will be establishing a fund to step in for cleanup and incidental take mitigation when environmental mishaps occur. 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. The fixed-meaning canon of statutory construction directs that [w]ords must be given the meaning they had when the text was adopted. Scalia & Garner at 78. the material on FederalRegister.gov is accurately displayed, consistent with documents in the last year, 28 Response: This proposal does not authorize the taking of migratory birds; it defines the scope for when authorizations under section 703 are necessary and appropriate. We agree that strict liability applies to misdemeanor violations of the MBTA. 22-23 (1917) (statement of R.W. 1311 (Feb. 7, 1936) (Mexico Convention). documents in the last year. documents in the last year, 124 It is anticipated that some entities that currently employ mitigation measures to reduce or eliminate incidental migratory bird take would reduce or curtail these activities given the legal certainty provided by this regulation. Osprey are protected by the Migratory Bird Treaty Act (MBTA) and may be afforded additional state protections in some loca-tions. Justice Gorsuch in Bostock was quite clear that legislative intent is only irrelevant if the language of the statute is plain, as he found the applicable language of the Civil Rights Act to be. Moon Lake, 45 F. Supp. By contrast, liability fails to attach to actions that are not directed toward rendering an animal subject to human control. Response: We appreciate that the commenters have engaged with the Service to advance conservation efforts that protect and enhance wildlife, including migratory birds, and that commenters advocate continued use of good faith efforts to limit impacts to migratory birds. 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. To this end, the United States supports these aspirations of the UNDRIP through the government-to-government consultation process when agency actions may affect the interests of federally recognized Tribes. FWS-HQ-MB-2018-0090. The final EIS and Regulatory Impact Analysis analyze the ecosystem services, such as insect consumption, provided by migratory birds. 1503 & 1507. Id. 13186 was not designed to implement the MBTA per se, but rather was intended to govern Federal efforts to conserve migratory birds more broadly. 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