Last week, the Fish and Wildlife Service issued a proposed rule that would revoke the rule promulgated by the Trump Administration in January 2021 and return to the prior status quo, in which the incidental take of birds subject to the Migratory Bird Treaty Act constituted a violation of the Act. I’m not taking a position on the proposal. I don’t think it’s as clear-cut as my friends in the environmental movement seem to believe. … More
Tag Archives: “incidental take”
Last week, the Office of the Solicitor in the Department of the Interior issued a legal Opinion concluding that the Migratory Bird Treaty Act does not prohibit the incidental take of migratory birds. It’s a thorough Opinion. While I disagree with it on some individual issues and I’m sure many will disagree with its conclusions, I think it should survive judicial review, assuming that a reviewing court can get past the fact that it directly contradicts a prior Opinion of the Interior Department issued less than a year ago.… More
As we discussed last summer, the Judge Lucy Koh of the Northern District of California ruled that the Fish and Wildlife Service’s 30-year programmatic permit for incidental takes of bald and golden eagles from wind farms violates NEPA. This week, FWS bowed to reality and revised the permit to change the term to five years.
No word on any efforts by FWS to provide the necessary analysis under NEPA that might justify a 30-year term. … More
Late last month, the Fish & Wildlife Service issued a Notice of Intent to prepare a programmatic environmental impact statement to evaluate various options for authorizing incidental takes under the Migratory Bird Treaty Act. Of likely the greatest interest to the regulated community, FWS will consider issuing general permits, with performance standards, for certain industry sectors. FWS specifically called out the following sectors:
- Oil, gas,…