On May 6, 2021, the U.S. Fish and Wildlife Service, under the Biden Administration, announced a proposed rule to revoke another regulation promulgated by the Trump Administration. Specifically, the Biden Administration has proposed a rule that would effectively revoke the Trump Administration’s final regulation that limited the scope of the Migratory Bird Treaty Act (“Trump Final Rule”).

The Trump Final Rule intended to codify the original understanding of the MTBA (which was passed in the early 20th century) and multiple appellate rulings holding that the Migratory Bird Treaty Act’s prohibition of pursuing, hunting, taking, capturing, killing, or attempting to do the same, only applies to actions actually directed at migratory birds, their nests, or their eggs – it does not apply to passive or accidental actions.

In promulgating the Trump Final Rule, the U.S. Fish and Wildlife Service heavily relied on the conclusions and analyses contained in Solicitor’s Opinion M-37050 (2017) and appellate court rulings, which include the liberal 9th Circuit. Thus, in an effort to extinguish the Trump Final Rule and the basis for promulgating it, the Department of the Interior also rescinded Solicitor’s Opinion M-37050 on May 6, 2021.

A link to the U.S. Fish and Wildlife Service’s announcement regarding the proposed rule can be accessed here, and the proposed rule can be assessed here. Of course, none of these actions change the previous appeals court rulings across the nation.

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