Voglio sapere a riguardo di…

24574

Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Proposed Rules
Opinion M37050 and the January 7
rule argued that the prohibited terms listed in section 2 all refer to conduct directed at migratory birds, and that the broad preceding language, by any means, or in any manner, simply covers all potential methods and means of performing actions directed at migratory birds and does not extend coverage to actions that incidentally take or kill migratory birds.
As noted above, on August 11, 2020, a court rejected the interpretation set forth in Solicitors Opinion M37050 as contrary to the MBTA and vacated that opinion. Natural Res. Def. Council v.
U.S. Dept of the Interior, 478 F. Supp.
3d 469 S.D.N.Y. 2020 NRDC . In late January 2021, two new lawsuits were filed that challenge the January 7
rule. Natl Audubon Socy v. U.S. Fish & Wildlife Serv., 1:21cv00448
S.D.N.Y. filed Jan. 19, 2021; State of New York v. U.S. Dept of the Interior, 1:21cv00452 S.D.N.Y. filed Jan. 19, 2021. At the time the January 7 rule was published, the United States had filed a notice of appeal of the NRDC
decision in the U.S. Court of Appeals for the Second Circuit. Since that time, the United States filed a stipulation to dismiss that appeal on February 25, 2021, and the Deputy Solicitor permanently withdrew M37050 on March 8, 2021.
The District Courts decision in NRDC
expressly rejected the basis for the January 7 rules conclusion that the statute does not prohibit incidental take.
In particular, the court reasoned that the plain language of the MBTAs prohibition on killing protected migratory bird species at any time, by any means, and in any manner shows that the MBTA prohibits incidental killing. See 478 F. Supp. 3d at 481.
Thus, the statute is not limited to actions directed at migratory birds. After closely examining the courts holding, we are persuaded that it advances the better reading of the statute, including that the better reading of kill is that it also prohibits incidental killing.
The interpretation contained in the January 7 rule relies heavily on United States v. CITGO Petroleum Corp., 801
F.3d 477 5th Cir. 2015 CITGO. The Fifth Circuit is the only Circuit Court of Appeals to expressly state that the MBTA does not prohibit incidental take.
In CITGO, the Fifth Circuit held that the term take in the MBTA does not include incidental taking because take at the time the MBTA was enacted in 1918 referred in common law to reducing animals, by killing or capturing, to human control and accordingly could not apply to accidental or incidental take. Id. at 489

VerDate Sep<11>2014

17:32 May 06, 2021

Jkt 253001

following Babbitt v. Sweet Home Chapter Cmtys. for a Great Or., 515 U.S.
687, 717 1995 Scalia J., dissenting Sweet Home. While we do not agree with the CITGO courts interpretation of the term take under the MBTA, we further note that CITGO does not provide legal precedent for construing kill narrowly. The CITGO courts analysis is limited by its terms to addressing the meaning of the term take under the MBTA; thus, any analysis of the meaning of the term kill was not part of the courts holding. As discussed below, however, we also disagree with the CITGO courts analysis of the term kill.
Although the CITGO courts holding was limited to interpreting take, the court opined in dicta that the term kill is limited to intentional acts aimed at migratory birds in the same manner as take. See 801 F.3d at 489
n.10. However, the court based this conclusion on two questionable premises.
First, the court stated that kill has little if any independent meaning outside of the surrounding prohibitory terms pursue, hunt, capture, and take, analogizing the list of prohibited acts to those of two other environmental statutesthe Endangered Species Act ESA 16 U.S.C. 1531 et seq. and the Migratory Bird Conservation Act 16
U.S.C. 715 et seq.. See id. The obvious problem with this argument is that it effectively reads the term kill out of the statute; in other words, the CITGO
courts reasoning renders kill superfluous to the other terms mentioned, thus violating the rule against surplusage. See, e.g., Corley v.
United States, 556 U.S. 303, 314 2009.
Second, employing the noscitur a sociis canon of statutory construction which provides that the meaning of an ambiguous word should be determined by considering its context within the words it is associated with, the Fifth Circuit argued that because the surrounding terms apply to deliberate acts that effect bird deaths, then kill must also. See 801 F.3d at 489 n.10. The January 7 rule also relied heavily on this canon to argue that both take and kill must be read as deliberate acts in concert with the other referenced terms.
Upon closer inspection though, the only terms that clearly and unambiguously refer to deliberate acts are hunt and pursue. Both the CITGO court and the January 7 final rule erroneously determined that capture can also only be interpreted as a deliberate act. This is not so. There are many examples of unintentional or incidental capture, such as incidental capture in traps intended for animals other than birds or
PO 00000

Frm 00062

Fmt 4702

Sfmt 4702

in netting designed to prevent swallows nesting under bridges. Thus, the CITGO
courts primary argument that kill only applies to deliberate actions rests on the fact that just two of the five prohibited actions unambiguously describe deliberate acts. The fact that most of the prohibited terms can be read to encompass actions that are not deliberate in nature is a strong indication that Congress did not intend those terms to narrowly apply only to direct actions.
The NRDC court similarly rejected the January 7 rules interpretation of the term kill and its meaning within the context of the list of actions prohibited by the MBTA. The court noted the broad, expansive language of section 2
prohibiting hunting, pursuit, capture, taking, and killing of migratory birds by any means or in any manner. 478
F. Supp. 3d at 482. The court reasoned that the plain meaning of this language can only be construed to mean that activities that result in the death of a migratory bird are a violation irrespective of whether those activities are specifically directed at wildlife. Id.
The court also noted that the Sweet Home decision relied upon by the CITGO court and the January 7 rule actually counsels in favor of a broad reading of the term kill, even assuming Justice Scalia accurately defined the term take in his dissent.
The Sweet Home case dealt specifically with the definition of take under the ESA, which included the terms harm and kill. The majority in Sweet Home was critical of the consequences of limiting liability under the ESA to affirmative conduct intentionally directed against a particular animal or animals, reasoning that knowledge of the consequences of an act are sufficient to infer liability, including typical incidental take scenarios. Id. at 48182.
The NRDC court went on to criticize the use of the noscitur a sociis canon in Solicitors Opinion M37050 a use repeated in the January 7 rule. The court reasoned that the term kill is broad and can apply to both intentional, unintentional, and incidental conduct.
The court faulted the Solicitors narrow view of the term and disagreed that the surrounding terms required that narrow reading. To the contrary, the court found the term kill to be broad and not at all ambiguous, pointedly noting that proper use of the noscitur canon is confined to interpreting ambiguous statutory language. Moreover, use of the noscitur canon deprives kill of any independent meaning, which runs headlong into the canon against surplusage as noted above. The court did not agree that an example provided
E:FRFM07MYP1.SGM

07MYP1