Three weeks ago the U.S. Fish and Wildlife Service proposed a regulation to finally resolve and codify the legal principal that an incidental bird take resulting from an otherwise lawful activity, for example a sparrows flies into a solar panel, is not prohibited under the Migratory Bird Treaty Act.

The Fish and Wildlife Service is the federal agency delegated the primary responsibility for managing migratory birds consistent with four international migratory bird treaties (between the United States and Canada, Mexico, Japan, and Russia) and the implementing the MBTA enacted in 1918. The goal of the MBTA was to stop the unregulated killing of migratory birds at the federal level. The MBTA makes it unlawful to, among other things, take individual birds of most species found in the United States, unless that taking is authorized by regulation. “Take” is defined by regulation as “to pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to hunt, shoot, wound, kill, trap, capture, or collect.”

Federal courts have adopted different views on whether the MBTA prohibits the “incidental take” of a migratory bird. Incidental take of a migratory bird is a take that results from an activity, but is not the purpose of that activity (also sometimes referred to as accidental, unintentional, or non-purposeful taking). The saga, now covering 1,093 species of birds, has played out more than a century, literally.

Earlier this year I wrote a bog post, Migratory Bird Treaty Act Will Apply Only to Intentional Takes, in response to a February 3, 2020, FWS move to codify a 2017 Department of the Interior Opinion M–37050, which determined the MBTA only applies to the intentional take of migratory birds and not an incidental take, saying,

“Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.”

In a parallel but not directly related action, on August 11, 2020, Judge Valerie Caproni, of the U.S. District Court for the Southern District of New York, struck down that Interior legal opinion, “It is not only a sin to kill a mockingbird, it is also a crime,” paraphrasing Harper Lee. “That has been the letter of the law for the past century.” The decision has been appealed. But that case did not involve the February notice of rulemaking (that yes, also relied on the same Interior legal opinion that Her Honor struck down).

Which takes the saga to three weeks ago and the FWS proposal to develop a regulation that interprets the scope of the MBTA decriminalizing the incidental take of migratory birds.

All of this is against the backdrop of a widely discussed study in the journal Science last year that found “cumulative loss of nearly three billion birds since 1970, across most North American biomes.” But that study concluded that building collisions, driven by the increased use of glass building facades, are second to cats as the greatest threat to birds. Criminal fines of housecat owners do not make a good public policy, but owners of glass buildings should breathe a sigh of relief. Far down on the list are industrial “incidental takings” resulting in, on average 57 investigations for migratory bird deaths each year (the largest number of which were by contact with an electric power line) resulting in $178.8 Million in criminal fines and civil penalties over the past decade.

This newly proposed rule has already sparked a fiery debate, pitting members of the environmental industrial complex against one another and in opposition to business scale renewable energy, but I suggest this rule strikes a reasonable balance between the 1918 era MBTA law and unintended take, including deaths associated with modern wind turbines and solar panels.