Birds at a Crossroads: Strategies for Augmenting the MBTA's Sway over Federal Lands
By Robb Wolfson
INTRODUCTION
July 18, 2000. Even people familiar with issues affecting federal lands probably would not consider this day memorable concerning its potential to impact significantly federal land holdings. This day, however, marks the beginning of a substantial split between federal circuit courts in the legal interpretation of the Migratory Bird Treaty Act of 1918 (MBTA) and its coverage of the federal government--a controversy that has the potential to force significant modification of certain practices affecting federal lands. The controversy grew out of an important decision, Humane Society of the United States v. Glickman, rendered by the D.C. Court of Appeals in 2000, holding that the MBTA applies to federal agencies. Glickman differed substantially from the decisions handed down by two other circuit courts just three years prior and marked the first time since the passage of the MBTA that the question of whether the MBTA applied to federal agencies was addressed directly and answered affirmatively on federal appellate review.
The federal circuit split indicates how erratic and unpredictable the legal outcomes of MBTA cases involving the federal government have been throughout its history--particularly over the last two decades. This inconsistent jurisprudence is evident whether the courts were resolving questions as basic as the MBTA's outright coverage of federal agencies, or more complicated ones, such as what constitutes a “taking” or “killing” of a migratory bird and, consequently, a violation of the law. The split between the circuits and the concrete issues underlying it will likely remain unresolved until the following two questions are confronted either by Congress or the United States Supreme Court:
1) Are federal agencies covered by the MBTA?
2) If so, would federal agency actions where the taking of birds, products, or their nests resulted but was not intended by the agency constitute violations of the MBTA similar to more direct and intentional takings?
In terms of impacts on federal lands and consequences for conservation, this Note examines the three broader scenarios that are the possible outcomes of these questions: 1) federal agency actions are not covered by the MBTA; 2) federal agency actions are covered by the MBTA, but the Act is only triggered when agencies engage in intentional attempts to directly take or kill migratory birds; and 3) federal agency actions are covered by the MBTA, including actions that are particularly foreseeable and reasonably avoidable regardless of intention. This Note assesses each scenario by examining relevant cases; because of the disagreement that currently exists in the federal judiciary concerning these questions, each scenario is currently being played out to some degree.
This Note will not try to parse which scenarios may be particularly inappropriate or likely to be invalidated. Instead, the Note will examine representative cases in order to discern guiding principles for the types of factual cases that are most likely to succeed from the standpoint of conservation interests.
July 18, 2000. Even people familiar with issues affecting federal lands probably would not consider this day memorable concerning its potential to impact significantly federal land holdings. This day, however, marks the beginning of a substantial split between federal circuit courts in the legal interpretation of the Migratory Bird Treaty Act of 1918 (MBTA) and its coverage of the federal government--a controversy that has the potential to force significant modification of certain practices affecting federal lands. The controversy grew out of an important decision, Humane Society of the United States v. Glickman, rendered by the D.C. Court of Appeals in 2000, holding that the MBTA applies to federal agencies. Glickman differed substantially from the decisions handed down by two other circuit courts just three years prior and marked the first time since the passage of the MBTA that the question of whether the MBTA applied to federal agencies was addressed directly and answered affirmatively on federal appellate review.
The federal circuit split indicates how erratic and unpredictable the legal outcomes of MBTA cases involving the federal government have been throughout its history--particularly over the last two decades. This inconsistent jurisprudence is evident whether the courts were resolving questions as basic as the MBTA's outright coverage of federal agencies, or more complicated ones, such as what constitutes a “taking” or “killing” of a migratory bird and, consequently, a violation of the law. The split between the circuits and the concrete issues underlying it will likely remain unresolved until the following two questions are confronted either by Congress or the United States Supreme Court:
1) Are federal agencies covered by the MBTA?
2) If so, would federal agency actions where the taking of birds, products, or their nests resulted but was not intended by the agency constitute violations of the MBTA similar to more direct and intentional takings?
In terms of impacts on federal lands and consequences for conservation, this Note examines the three broader scenarios that are the possible outcomes of these questions: 1) federal agency actions are not covered by the MBTA; 2) federal agency actions are covered by the MBTA, but the Act is only triggered when agencies engage in intentional attempts to directly take or kill migratory birds; and 3) federal agency actions are covered by the MBTA, including actions that are particularly foreseeable and reasonably avoidable regardless of intention. This Note assesses each scenario by examining relevant cases; because of the disagreement that currently exists in the federal judiciary concerning these questions, each scenario is currently being played out to some degree.
This Note will not try to parse which scenarios may be particularly inappropriate or likely to be invalidated. Instead, the Note will examine representative cases in order to discern guiding principles for the types of factual cases that are most likely to succeed from the standpoint of conservation interests.
