On Aug. 11, 2020, the U.S. District Court for the Southern District of New York (SDNY) invalidated the 2017 Department of the Interior legal opinion (M-37050) that had reversed prior policy by stating that the Migratory Bird Treaty Act (MBTA) does not prohibit incidental take. The SDNY judge disagreed and concluded the MBTA prohibits take “by any means or in any manner.” The court’s decision adds a new twist to ongoing efforts at the agency to finalize an AGC-supported rule intended to codify the now vacated legal opinion.
Moving forward, the Department of Justice may appeal the decision and on a parallel track, the agency may continue to work on finalizing the proposed rule. The regulatory process is more intensive than development of an agency policy document and may prove stronger to defend in court. In the meantime, contractors should consult with their legal and environmental experts to determine the best course for implementing the MBTA on projects.
For more information, contact Melinda Tomaino at melinda.tomaino@agc.org.