Fish and Wildlife Revives Incidental Take Saga Under the Migratory Bird Treaty Act

In latest saga surrounding the formidable Migratory Bird Treaty Act (MBTA or Act), the U.S. Fish and Wildlife Service on April 21, 2025, withdrew its 2021 advance notice of proposed rulemaking to potentially authorize the incidental taking or killing of migratory birds, consistent with its interpretation of the Act.  The 2021 advance notice promised a new regulatory scheme possibly authorizing the incidental take of migratory birds — a practice that would have broken with pre-2017 MBTA interpretation but more practically implement the Act in response to various needs, such as infrastructure permitting and development.

While this withdrawal has no practical effect, it foreshadows the agency’s likely next moves under the Trump administration.  We previously detailed the legal dispute spanning three — and now four — successive Secretaries of the Interior grappling with the extent of liability imposed by the Act for unintentional take of protected migratory birds.  As it stands, the October 4, 2021 final rule remains in effect, meaning the Service is still implementing the Act as prohibiting incidental take and applying enforcement discretion consistent with judicial precedent and agency practice during the Biden administration and prior to 2017.

But with the Service’s nod to the Secretary of the Interior’s Order 3418 — “Unleashing American Energy” — we are likely to find ourselves soon reliving this game of enforcement ping pong and expect the Service to repromulgate, or more informally announce, its 2017 interpretation of the Act designed to exclude enforcement of incidental take altogether.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.