Letter to The Honorable David Bernhardt, Secretary of the U.S. Department of the Interior - Lowenthal, Fitzpatrick, Grijalva, and Rooney, 48 House Colleagues, Urge Interior Dept. To Abandon Unlawful Efforts To Reinterpret 100-Year-Old Law Protecting Millions Of Migratory Birds

Letter

Dear Secretary Bernhardt:
We are writing to follow up on previous letters regarding the Migratory Bird Treaty Act and the
draft Environmental Impact Statement (EIS) and proposed regulation to codify the 2017
Solicitor's Opinion on incidental take. In light of a recent federal court ruling that vacated the
Solicitor's Opinion, and the deep concerns raised by key stakeholders during the regulatory
process, we urge you to abandon the effort to codify the Opinion, as the Department cannot
lawfully codify an unlawful Solicitor's Opinion, and instead pursue a rulemaking that is
consistent with the court decision and the MBTA.
On August 11, 2020, the U.S. District Court for the Southern District of New York vacated the
Solicitor's Opinion. The court found that this interpretation and policy is "contrary to the plain
meaning of the MBTA", "runs counter to the purpose of the MBTA", and concluded that the
Opinion was "a solution in search of a problem". The decision unambiguously found that the
legal rationale and the outcome of the Solicitor's Opinion does not align with the law that
Congress passed and intended. Congress passed the MBTA, and the United States signed four
bilateral migratory bird treaties, in order to broadly protect and conserve our nation's bird
populations. Moving forward with a regulation that continues to avoid and undermine this
obligation is not a viable path forward.
As demonstrated over recent months, there is deep and broad concern from across the country,
and internationally, about the impacts of the policy and the process that the Department of the
Interior has undertaken. Since issuing the proposed rule, representatives from more than 25 state
governments have opposed the rule or requested another path forward. Numerous tribes have
expressed opposition to the rule and requested government-to-government consultation on the
regulation. The Government of Canada has submitted strong objections and concerns about how
it impacts our bilateral treaty and shared migratory birds. Three flyway councils have continued
to request that the Department of the Interior not move forward with the policy. And numerous
individuals and organizations representing sportsmen, conservationists, and scientists have asked
that you reverse course, joining more than 250,000 people in submitting comments against the
regulation.
This is a significant moment for the history of this foundational conservation law, along with the
billions of birds that it protects, and the recreation and tourist economy which rely on migratory
bird populations. We believe that there is fundamentally a lack of legal and stakeholder support
for the current policy. It is not a sustainable position for the law, or for our bird populations.
Fortunately, there is a better path forward. We do not have to choose between conservation or
regulatory certainty. While we believe that the Fish and Wildlife Service (FWS) has struck a
reasonable balance in implementing the law over the decades, FWS can pursue a framework for
incidental take that aligns with the conservation intent and language of the MBTA, which
provides additional legal certainty for entities.
We urge the Department of the Interior abandon its current rulemaking and consider an approach
that not only regulates incidental take but establishes a general permitting framework to
encourage the implementation and creation of best management practices by industry. Within the
draft EIS, FWS listed such a framework under its "Alternatives Considered but Not Carried
Forward for Further Review". Further, the bipartisan Migratory Bird Protection Act of 2020
(H.R.5552) currently being considered in the House of Representatives, creates certainly for
industry by building the framework for a general permitting program for industries as well as
exempting industries with de minimis risk activities. All while providing greater protections for
migratory birds and their habitat.

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