In a sweeping return to a more literal and arguably originalist interpretation of one of the nation’s environmental laws, the U.S. Department of the Interior has once again reversed course on how the Migratory Bird Treaty Act is enforced. In the latest development, incidental take, the unintentional injury or death of migratory birds, is no longer prohibited under federal law.

This change marks the third administration in a row to take a markedly different position on this century old statute. And while the legal pendulum has swung before, the April 11, 2025, restoration of Solicitor’s Opinion M-37050 firmly reestablishes a literal reading of the MBTA, confining its prohibitions solely to intentional acts.

A Brief Legislative and Legal History

Enacted in 1918 to implement a 1916 treaty with Great Britain on behalf of Canada, the MBTA has since become the bedrock of environmental protection law in the United States. Section 703 of the Act is famously broad, making it a strict liability criminal offense to, among other things, “pursue, hunt, take, capture, kill ‘a covered migratory bird’ by any means or in any manner.” The Act now covers 1,093 species and more than 10 billion birds.

For decades, this language was read to prohibit both intentional and unintentional (incidental) killings of migratory birds. Beginning in the 1970s, the U.S. Fish and Wildlife Service began prosecuting even accidental takes, particularly where industrial activity caused bird deaths.

Notably, in 2013, FWS estimated that wind turbines alone accounted for between 140,000 and 500,000 bird deaths annually. This interpretation culminated in several high profile prosecutions, including against Duke Energy, for bird fatalities caused by wind energy operations.

However, such a broad enforcement scope has always posed a vexing policy question: Should a 1918 statute, written before 80 percent of houses had electricity or long before the dawn of wind energy, be stretched to cover every inadvertent avian casualty?

Executive Branch Reinterpretation – Again

Under the Trump administration, Principal Deputy Solicitor Daniel H. Jorjani issued M-37050 in December 2017. That legal opinion concluded that the MBTA’s criminal prohibitions apply only to purposeful actions directed at birds. This interpretation was promptly challenged and ultimately vacated in 2020 by Judge Valerie Caproni in Natural Resources Defense Council v. U.S. Department of the Interior, who memorably wrote, “It is not only a sin to kill a mockingbird, it is also a crime.”

Yet, that decision never received full appellate review. The Biden administration reversed the policy via M-37065, again criminalizing incidental take. But now, with the advent of a second Trump administration and Executive Order 14154, “Unleashing American Energy,” we’ve returned full circle.

On February 3, 2025, Secretary of the Interior Doug Burgum directed the Department to rescind burdensome agency actions, including M-37065. Then, on April 11, 2025, the Acting Solicitor issued a one page legal opinion restoring M-37050 and repealing M-37065, citing lack of proper judicial review and alignment with current executive direction. The opinion is now binding on all Department offices, except, notably, within the jurisdiction of the Southern District of New York, where Judge Caproni’s ruling still casts a long shadow.

Legal and Practical Implications

This latest shift reaffirms a fundamental principle of statutory interpretation: a law must be applied as written, not as adapted to modern concerns, unless Congress so directs. As Solicitor Jorjani’s original opinion reasoned, the MBTA does not, by its plain text, prohibit incidental take.

Moreover, this interpretation aligns with historical intent. In 1918, electricity was a luxury for just 20% of U.S. households, none of it generated by wind turbines, high tension wires, or solar arrays. Congress could not have contemplated applying the MBTA to the indirect, industrial-scale effects of modern infrastructure.

In effect, this rollback eliminates a significant compliance burden on energy producers, real estate developers, and landowners who would otherwise face potential criminal liability for bird deaths that occur despite good faith efforts to mitigate harm.

Conclusion

Whether one views the MBTA’s strict protections as a moral imperative or a statutory overreach, the law as it stands, at least for now, does not prohibit incidental take. Unless and until Congress steps in to amend the statute, the scope of the MBTA will be governed by the plain language of its text and the intent of its drafters, not the ecological challenges of the 21st century.

We will, as always, continue to monitor legal developments around the MBTA and incidental take. For those operating in businesses that are potentially impacting migratory birds, now is a prudent time to reevaluate risk exposure under this latest legal interpretation.

For additional insights, see our previous blog posts, including “Revoking the Migratory Bird Treaty Act Incidental Take Rule, Once Again.”
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