Migratory Bird Conservation – A Trust Responsibility
Legal History of Take and Recent Case Law
Module 7 - Legal History of Take and
Recent Case Law
A brief history of federal unintentional take
We’ve talked how take is defined, including unintentional take. We’ve talked about
permitting, and how it is largely available only for intentional take. Much of the legal
discussion will focus on the implications of this apparent mismatch.
The Service has traditionally used prosecutorial discretion to deal with the gap between
what is prohibited by the Act and what the Service is willing or able to permit. In other
words, with respect to oil pits and power lines, for example, the Service has not brought
prosecutions for every bird death. Rather, the Service has in effect asked companies to
take reasonable efforts to minimize take, and if the companies do so, the Service does not
bring prosecutions even if some take occurs. Some companies were unhappy with this
situation, as they understandably desired the legal certainty that comes with a permit.
Nonetheless, this system more or less worked for about 25 years.
In the mid-1990s, environmental plaintiffs began to bring MBTA claims while opposing
timber harvesting. Even though the MBTA has no so-called citizen-suit provision, all federal
agencies are subject to the Administrative Procedure Act. Under the APA, members of the
public can challenge agency action that is arbitrary, capricious, or not otherwise in
compliance with law. Thus, even though the public has no legal remedy against the private
entities that violate the MBTA if the federal government takes no enforcement action, the
public can seek to enjoin federal action that violates the MBTA. Several district courts
distinguished Seattle Audubon and followed the Corbin Farm and FMC cases, holding that
timber harvesting that immediately kills birds (as opposed to harming birds “merely” by
affecting their habitat) is a violation of the take prohibition. One district court disagreed, and
held that the MBTA was intended as a hunting and poaching statute only, and has no
application to unintentional take.
February 2010 ECS2102, Module 07 – 1 USFWS-NCTC
Migratory Bird Conservation – A Trust Responsibility
Legal History of Take and Recent Case Law
In response, and notwithstanding the Service’s previous practice to the contrary, DOJ began
to argue that the prohibitions of the MBTA do not apply to federal agencies. In 1997, one
appellate court agreed, and another suggested the same result, and several district courts
then followed these decisions.
In order to be able to ensure that federal agencies were acting consistently with the treaties,
even if the prohibitions of the MBTA did not themselves apply to federal agencies, the
federal government began work on executive order that would lay out our agency
responsibilities for conserving migratory birds. In the meantime, in order to be consistent
with DOJ’s litigating position, the Service stopped providing available permits for intentional
take (such as scientific collecting and depredation) to federal agencies. This lead to the
next significant development.
In Humane Society v. Glickman, plaintiffs sued USDA and DOI to enjoin implementation of a
Canada goose control program in Virginia. Pursuant to the new policy, Animal Damage
Control (now Wildlife Services) did not have a permit allowing it to take depredating geese.
The district court held that the MBTA does apply to federal agencies, and enjoined the
program until ADC got a permit. DOJ appealed on behalf of USDA, and the D.C. Circuit
upheld the district court in 2000. Because federal agencies can almost always be sued in
D.C., this case essentially ended the debate (absent appeal to the Supreme Court).
Although this was not a huge problem for ADC, which could just get a permit, it created a
real conundrum for agencies that unintentionally take birds, as no permits were available.
The expected rash of cases against the Forest Service did not materialize, perhaps because
many environmental groups realized that overzealous litigation in the Forest Service cases
had led to unintended results, and more of the same could result in real damage to the
MBTA, either administratively or legislatively.
February 2010 ECS2102, Module 07 – 2 USFWS-NCTC
Migratory Bird Conservation – A Trust Responsibility
Legal History of Take and Recent Case Law
The case that eventually came was a surprise. CBD challenged Navy exercises at Farallon
de Medinilla in the Marianas that kill seabirds. The case was decided while the initial phase
of the war in Afghanistan was underway. The court nonetheless exercised his discretion to
issue an injunction against further training activities that would kill birds. The D.C. Circuit
stayed this order pending appeal. The appeal was mooted out by Congress, which gave the
military a temporary exemption until FWS promulgated a regulation authorizing take of
migratory birds pursuant to military readiness activities.
In one other post-Glickman case, the Service gave a federal agency a permit for
unintentional take. In the Anacapa rat case, the Service gave the Park Service a permit
covering unintentional takes caused by rat poisoning efforts designed to benefit migratory
bird species of concern, among other. The permit was issued after animal rights
organizations seeking to protect the rats filed suit. The court found a technical defect in the
NEPA compliance, but refused to enjoin the poisoning, which by all accounts has been very
successful.
February 2010 ECS2102, Module 07 – 3 USFWS-NCTC
Migratory Bird Conservation – A Trust Responsibility
Legal History of Take and Recent Case Law
Major cases involving the scope and
applicability of the MBTA
I. MBTA does not apply to the federal government
A. Sierra Club v. Martin, 110 F.3d 1551 (11th Cir. 1997)
B. Newton County Wildlife Association v. U.S. Forest Service, 113 F.3d 110 (8th
Cir. 1997) (dicta)
C. Curry v. U.S. Forest Service, 988 F. Supp. 541 (W.D. Penn. 1997) (following
Martin)
II. MBTA applies to the federal government
A. Humane Society v. Glickman, 217 F.3d 882 (D.C. Cir. 2000)
B. See also Center for Biological Diversity v. Pirie, 191 F. Supp. 161 and 201 F.
Supp. 2d 113 (D.D.C. 2002) (FDM case) (assuming MBTA applies); Fund for
Animals v. Mainella, No. 01-2288 (ESH) (D.D.C. Jan. 4, 2002) (Anacapa rat
case) (same).
February 2010 ECS2102, Module 07 – 4 USFWS-NCTC
Migratory Bird Conservation – A Trust Responsibility
Legal History of Take and Recent Case Law
III. MBTA applies to unintentional takes
A. United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978)
B. United States v. Corbin Farm Serv., 444 F. Supp. 510 (E.D. Cal.), aff’d on other
grounds, 578 F.2d 259 (9th Cir. 1978)
C. Seattle Audubon Society v. Evans, 952 F.2d 297 (9th Cir. 1991) (but not
indirect, unintentional take, i.e., not habitat modification per se)
D. Sierra Club v. Martin, 933 F. Supp. 1559 (N.D. Ga. 1996), reversed on other
grounds, 110 F.3d 1551 (11th Cir. 1997)
E. United States v. Moon Lake Electric Ass’n, Inc., 45 F. Supp. 2d 1070 (D. Colo.
1999)
F. U.S. v. Apollo Energies, Inc., 2009 U.S. Dist. Lexis 6160 (D. Kan. 2009)
G. See also Sierra Club v. U.S.D.A., 1995 U.S. Dist. Lexis 21507 (S.D. Ill. 1995)
(following the direct/indirect distinction in Seattle Audubon, and remanding
for consideration by Forest Service); Center for Biological Diversity v. Pirie,
191 F. Supp. 161 and 201 F. Supp. 2d 113 (D.D.C. 2002) (FDM case)
(assuming MBTA applies); Fund for Animals v. Mainella, No. 01-2288 (ESH)
(D.D.C. Jan. 4, 2002) (Anacapa rat case) (same).
February 2010 ECS2102, Module 07 – 5 USFWS-NCTC
Migratory Bird Conservation – A Trust Responsibility
Legal History of Take and Recent Case Law
IV. MBTA does not apply to unintentional takes
A. Mahler v. United States, 927 F. Supp. 1559 (S.D. Ind. 1996)
B. Curry v. U.S. Forest Service, 988 F. Supp. 541 (W.D. Penn. 1997)
C. Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F.3d 110 (8th Cir.
1997) (dicta), cert. denied, 552 U.S. 1108 (1998)
D. United States v. Ray Westall Operating, Inc. (D.N.M. 2009)
E. United States v. Chevron USA, Inc. (W.D. La. 2009)
F. See also City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004) (following
Seattle Audubon and holding that habitat modification does not constitute
take, but brief discussion does not make distinction between direct and
indirect take; could be cited as support for argument that habitat modification
cannot lead to take); Citizens Interested in Bull Run, Inc. v. Edrington, 781 F.
Supp. 1502 (D. Or. 1991) (similar).
Other Noteworthy Cases
Hill v. Norton, 275 F.3d 98 (D.C. Cir. 2001) (establishing that mute swan is protected
by the MBTA).
Fund for Animals v. Norton, No. ECF 03-1710 (EGS) (D.D.C. Sept. 9, 2003)
(preliminarily enjoining permit to State of Maryland for mute swan control).
Fund for Animals v. Kempthorne, 472 F.3d 872 (D.C. Cir. 2006) (holding that mute
swan is excluded by MBTRA).
February 2010 ECS2102, Module 07 – 6 USFWS-NCTC
Migratory Bird Conservation – A Trust Responsibility
Legal History of Take and Recent Case Law
February 2010 ECS2102, Module 07 – 7 USFWS-NCTC