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Federal Register / Vol. 86, No. 87 / Friday, May 7, 2021 / Proposed Rules by the government demonstrated that kill had independent meaning from take under the interpretation espoused by Solicitors Opinion M
37050. By analogy, the court referenced the Supreme Courts rejection of the dissents use of the noscitur canon in Sweet Home, which similarly gave the term harm the same essential function as the surrounding terms used in the definition of take under the ESA, denying it independent meaning. See id.
at 484.
In sum, after further review of the CITGO and NRDC decisions, along with the language of the statute, we now conclude that the interpretation of the MBTA set forth in the January 7 rule and Solicitors Opinion M37050, which provided the basis for that interpretation, is not the construction that best accords with the text, purposes, and history of the MBTA. It simply cannot be squared with the NRDC courts holding that the MBTAs plain language encompasses the incidental killing of migratory birds.
Even if the NRDC courts plain-language analysis were incorrect, the operative language of the MBTA is at minimum ambiguous, thus USFWS has discretion to implement that language in a manner consistent with the conservation purposes of the statute and its underlying Conventions. To the extent that the primary policy justifications for the January 7 rule were resolving uncertainty and increasing transparency through rulemaking, we do not consider these concerns to outweigh the legal infirmities of the January 7 rule or the conservation purposes of the statute and its underlying Conventions. Interpreting the statute to exclude incidental take is not the reading that best advances these purposes, which is underscored by the following additional reasons for revoking the current regulation.
First, the January 7 rule is undermined by the 2002 legislation authorizing military-readiness activities that incidentally take or kill migratory birds. In that legislation, Congress temporarily exempted incidental taking caused by military-readiness activities from the prohibitions of the MBTA; required the Secretary of Defense to identify, minimize, and mitigate the adverse effect of militaryreadiness activities on migratory birds;
and directed USFWS to issue regulations under the MBTA creating a permanent exemption for militaryreadiness activities. Bob Stump National Defense Authorization Act for Fiscal Year 2003, Public Law 107314, Div. A, Title III, section 315 2002, 116 Stat.
2509 Stump Act. This legislation was enacted in response to a court ruling
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that had enjoined military training that incidentally killed migratory birds. Ctr.
for Biological Diversity v. Pirie, 191 F.
Supp. 2d 161 and 201 F. Supp. 2d 113
D.D.C. 2002, vacated on other grounds sub nom. Ctr. for Biological Diversity v.
England, 2003 U.S. App. Lexis 1110
D.C. Cir. Jan. 23, 2003. Notably, Congress did not amend the MBTA to define the terms take or kill.
Instead, Congress itself uses the term incidental take and provides that the MBTA shall not apply to such take by the Armed Forces during militaryreadiness activities. Moreover, Congress limited the exemption only to military-readiness activities to training and operations related to combat and the testing of equipment for combat use;
it expressly excluded routine militarysupport functions and the operation of industrial activities from the exemption afforded by the 2002
legislation, leaving such non-combatrelated activities fully subject to the prohibitions of the Act. Even then, the military-readiness incidental take carveout was only temporarily effectuated through the statute itself. Congress further directed the Department of the Interior DOI or the Department to prescribe regulations to exempt the Armed Forces for the incidental taking of migratory birds during military readiness activities. This would be an odd manner in which to proceed to address the issue raised by the Pirie case if Congress governing understanding at the time was that incidental take of any kind was not covered by the Act we acknowledge that Congresss understanding when enacting legislation in 2002 is relevant to, but not dispositive of, Congresss intent when it enacted the MBTA in 1918. Congress simply could have amended the MBTA
to clarify that incidental take is not prohibited by the statute or, at the least, that take incidental to military-readiness activities is not prohibited. Instead, Congress limited its amendment to exempting incidental take only by military-readiness activities, expressly excluded other military activities from the exemption, and further directed DOI
to issue regulations delineating the scope of the military-readiness carve-out from the prohibitions of the Act. All of these factors indicate that Congress understood that the MBTAs take and kill prohibitions included what Congress itself termed incidental take.
In arguing that Congresss authorization of incidental take during military-readiness activities did not authorize enforcement of incidental take in other contexts, the January 7 rule cites the CITGO courts conclusion that
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a single carve-out from the law cannot mean that the entire coverage of the MBTA was implicitly and hugely expanded. CITGO, 801 F.3d at 491. It is true that the Stump Act clearly did not, by its terms, authorize enforcement of incidental take in other contexts. It clearly could not do anything of the sort, based on its narrow application to military-readiness activities. Rather, the logical explanation is that Congress considered that the MBTA already prohibited incidental take particularly given USFWSs enforcement of incidental take violations over the prior three decades and there was no comprehensive regulatory mechanism available to authorize that take. Thus, it was necessary to temporarily exempt incidental take pursuant to militaryreadiness activities to address the Pirie case and direct USFWS to create a permanent exemption. This conclusion is supported by the fact that Congress specifically stated in the Stump Act that the exemption did not apply to certain military activities that do not meet the definition of military readiness, including operation of industrial activities and routine military-support functions.
On closer inspection, the CITGO
courts analysis of the purposes behind enactment of the military-readiness exemption is circular. Assuming the military-readiness exemption is necessary because the MBTA otherwise prohibits incidental take only represents an implicit and huge expansion of coverage under the MBTA if it is assumed that the statute did not already prohibit incidental take up to that point.
But Congress would have had no need to enact the exemption if the MBTA did notboth on its terms and in Congresss understandingprohibit incidental take. The adoption of a provision to exempt incidental take in one specific instance is merely a narrowly tailored exception to the general rule, and provides clear evidence of what Congress understood the MBTA to prohibit.
Second, further consideration of concerns expressed by one of our treaty partners counsels in favor of revoking the January 7 rule. The MBTA
implements four bilateral migratory bird Conventions with Canada, Mexico, Russia, and Japan. See 16 U.S.C. 703
705, 712. The Government of Canada communicated its concerns with the January 7 rule both during and after the rulemaking process, including providing comments on the environmental impact statement EIS
associated with the rule.
After the public notice and comment period had closed, Canadas Minister of
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