Under the Trump Administration, Solicitor’s Opinion M-37050 was issued on December 22, 2017, which stated that the Migratory Bird Treaty Act (MBTA) prohibited purposeful killing of migratory birds but did not prohibit the accidental killing of said birds.  (https://www.doi.gov/pressreleases/interior-department-takes-steps-revoke-final-rule-migratory-bird-treaty-act-incidental.)  Subsequently, on January 7, 2021, the U.S. Fish and Wildlife Service (USFWS) published a final rule that formalized the conclusion of Solicitor’s Opinion M-37050, such that accidental killing of migratory birds was not prohibited.

On March 8, 2021, the Department of the Interior (DOI) under the Biden Administration rescinded Solicitor’s Opinion M-37050. Subsequently, on May 5, 2021, the USFWS announced a proposed rule to revoke the final rule issued on January 7, 2021 that formalized the conclusion of Solicitor’s Opinion M-37050.  The practical effect of this new policy will be that many land use projects will have a significant risk of violating the MTBA due to accidental death of birds at the project site.  While under the Trump Administration, only purposeful killing of migratory birds or damage to nests and eggs was prohibited, under the Biden Administration, accidental killing due to development projects will be considered a violation of the MTBA.

Of note, the Biden Administration’s proposed rule will do nothing to overturn the multiple Appellate Court Rulings throughout the country (including the very liberal 9th Circuit) agreeing with the Trump Administration’s position.