	Background

The MBTA is a criminal environmental statute, enacted in 1918 to implement a 1916 treaty signed by the United States a nd Great Britain (acting for Canada) aimed at protecting birds that migrate between the two countries. The MBTA regulations define the term "take" as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect" or to attempt to do so. Whether these actions violate the MBTA take prohibitions depends on whether federal agencies are subject to the MBTA. The courts have differing opinions on the applicability of the MBTA to federal agencies. However, courts have declined to apply the MBTA to regulatory actions related to third-party projects based on two main principles: (1) agencies are not subject to the MBTA when their regulatory actions do not directly take migratory birds; and (2) agencies have no affirmative duty to guarantee a third-party's future compliance with the MBTA. In general, the courts have looked at three different types of actions or omissions that result in the taking of migratory birds:
1. direct and intentional acts or omissions; 2. direct and unintentional acts or omissions; and 3. indirect and unintentional acts or omissions (incidental takes). There is a wide range of federal district and appellate court cases that have addressed this issue. Direct and Intentional Takes

Courts generally agree that FWS's regulatory definition of "take" prohibits unpermitted direct and intentional actions that include hunting, shooting, wounding, killing, trapping, and capturing migratory birds. Direct and Unintentional Takes

Several cases involve direct actions that violate the MBTA prohibitions but lacked intention or "guilty knowledge." In the context of the MBTA, the prohibitions under Section 703(a) are generally viewed as strict liability crimes, and proof of intent to take or knowledge of taking a migratory bird is not needed to establish a misdemeanor violation of the Act. Indirect and Unintentional (Incidental) Takes

FWS has stated that the MBTA applies to the take of migratory birds that occurs incidental to, and is not the purpose of, an otherwise lawful activity. Recent enforcement actions against wind energy developers reinforce the Service's broad interpretation that the MBTA prohibitions on taking migratory birds extend to actions that unintentionally result in bird deaths. Fifth Circuit Approach Limiting Strict Liability of the Takings Prohibition

The Fifth Circuit has sought to bridge the gap between the Second and Tenth Circuit courts that hold that incidental takings violate the MBTA as a strict liability offense, and the Eighth and Ninth Circuit courts that hold that only direct and intentional takings, such as hunting and poaching, violate the taking prohibition. Judicial Interpretation of Congressional Intent

The legislative history of the MBTA supports differing interpretations of the nature and scope of takings prohibited and types of migratory birds protected by the MBTA. FWS's Proposed Incidental Take Permitting Program

To address some of the uncertainty regarding incidental takes and compliance with the MBTA, in May 2015, FWS announced that it was considering developing an MBTA permitting program to authorize incidental takes of migratory birds. If FWS adopts incidental take regulations under the MBTA, the final regulations are likely to be challenged in the Fifth, Eighth, and Ninth Circuits, where the courts have more narrowly construed FWS authority and the scope of the MBTA to regulate only direct and intentional takings of migratory birds and not the taking of migratory birds that occurs incidental to, and is not the purpose of, an otherwise lawful activity.
The Migratory Bird Treaty Act (MBTA) (16 U.S.C. §§703-712) is a criminal environmental statute, enacted in 1918 to implement a 1916 treaty signed by the United States and Great Britain (acting for Canada) aimed at protecting birds that migrate between the two countries. The MBTA prohibits the taking and killing of migratory birds, but does not itself define the term "take." U.S. Fish and Wildlife Service's (FWS's) regulations define "take" as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect" or to attempt to do so.
The courts are divided on whether federal agencies are subject to the MBTA take prohibitions. In cases where federal agencies have been considered subject to the MBTA take prohibitions, some courts have declined to apply the MBTA to regulatory actions such as permit and project approvals, holding that agencies (1) have no affirmative duty to guarantee a third-party permit holder's future compliance with the MBTA and (2) are not subject to the MBTA when their regulatory actions do not directly take migratory birds.
A wide range of federal district and appellate court cases have addressed the nature and scope of takings prohibited under the MBTA. In general, the courts have looked at three different types of taking of migratory birds: (1) direct and intentional; (2) direct and unintentional; and (3) indirect and unintentional (incidental). Courts generally agree that the MBTA prohibits unpermitted direct and intentional actions that include hunting, shooting, wounding, killing, trapping, and capturing migratory birds. Cases that involve direct actions that violate the MBTA prohibitions but lack intention or "guilty knowledge" are generally viewed as strict liability crimes where proof of intent to take or knowledge of taking a migratory bird is not needed to establish a misdemeanor violation of the MBTA. For incidental takes, FWS has stated that the MBTA applies to the take of migratory birds that is incidental to, but not the purpose of, an otherwise lawful activity. FWS's recent enforcement actions against wind energy developers for incidental bird deaths caused by wind turbines reinforce this broad interpretation of its enforcement authority.
However, jurisprudence on the applicability of the MBTA to incidental taking of migratory birds is less clear. Federal Courts of Appeals for the Second and Tenth Circuits have agreed with FWS that the MBTA is a strict liability statute that applies to bird deaths that incidentally result from otherwise lawful activity. However, courts in the Fifth, Eighth, and Ninth Circuits have taken the opposite view, holding that the statute only applies to purposeful actions directed against migratory birds, such as hunting and poaching. The legislative history of the MBTA supports differing interpretations of the nature and scope of MBTA's taking prohibitions.
In the absence of direction or guidance from the Supreme Court or Congress on the scope of MBTA's take prohibitions, FWS plans to address some of the uncertainty regarding incidental takes and compliance with the MBTA through a proposed incidental take permitting program. An incidental take permitting program is likely to be challenged in Fifth, Eighth, and Ninth Circuits where the courts have narrowly construed FWS authority and the scope of the MBTA.
This report reviews the major provisions of the MBTA; examines the types of government action that are subject to the MBTA; analyzes the conflicting judicial interpretations of the taking provisions; and outlines FWS's proposed incidental take permitting program.