Photo: Jeffrey Hamilton
By Marcy Beck, Gretchen Gehrke, and Aaron Lemelin
EDGI welcomed the opportunity to comment on the U.S. Fish and Wildlife Service (FWS) Proposed Rule: Migratory Bird Permits; Regulations Governing Take of Migratory Birds (Docket No. FWS-HQ-MB-2018-0090) in March 2020. This rule would narrow the scope of the Migratory Bird Treaty Act (MBTA) to only prohibit direct and intentional actions taken against migratory birds and their eggs or nests, instead of its scope historically interpreted to prohibit the killing of migratory birds even unintentionally (known as “incidental take”). Our comment document, Public Access to Federal Information Relevant to Incidental Take under the Migratory Bird Treaty Act is Insufficient for Engagement in Rulemaking and for the Public Record, addressed removals, omissions, and revisions of Migratory Bird Treaty Act (MBTA) resources, including those related to incidental take, that constrain the public’s ability to effectively participate in the rulemaking process. These resource removals also constitute an abandonment of the Department of Interior’s (DOI’s) responsibility to maintain and preserve the regulatory public record.
Two categories of these removals, omissions, and revisions stood out to us for comment:
a) The lack of information and the removals of online Migratory Bird Treaty Act resources on the U.S. Fish and Wildlife Service’s (FWS) websites, much of which was documented in EDGI’s September 2018 Report, “Removals of Access to Migratory Bird Treaty Act and Incidental Take Resources on the DOI’s U.S. Fish and Wildlife Service Website”
b) Incomplete and selective information in the proposed rule document itself, which paved the way for FWS’s use of critically flawed arguments
Lack of access to online MBTA and Incidental Take information hinders public participation in rulemaking
The FWS proposed rule regarding the take of migratory birds under the MBTA would reverse more than a half-century of federal policy that held industry and companies liable for irresponsible actions resulting in preventable (if unintentional) bird deaths. The removal of and reduced access to MBTA and incidental take information on FWS websites does special harm to the public’s ability to understand the purpose of the MBTA, the importance of the “take” clause and the concept of incidental take, the feasibility of MBTA implementation options, and to be able to assess the impacts of such options on wildlife conservation.
Our comment highlights a series of removals of content and access from the DOI and FWS websites that impair the public’s understanding of the history and importance of the incidental take provisions of the MBTA. Among the resources removed were an entire website dedicated to the issue of the incidental take of migratory birds, a webpage that served as FWS.gov’s main source of incidental take information, and a posted 30-page DOI Solicitor’s Opinion document on incidental take.
FWS removed an entire website devoted to this issue, www.birdregs.org, which was identified as a public involvement initiative of FWS and promoted as an “open, public conversation about the incidental take of migratory birds.” Before access was removed, the Birdregs.org website had preserved the conversations and processes that the previous administration had undertaken to develop DOI Solicitor’s Opinion M-37041 on the incidental take of migratory birds. The birdregs.org website and its informational structure demonstrate the value that the previous administration placed on online resources, and how those online resources can encourage public input in the rulemaking process.
FWS removed in its entirety the “Incidental Take” webpage subtitled “Migratory Bird Program Provides Voluntary Guidance to Help Project Proponents Reduce Incidental Take” from its FWS Birds website https://www.fws.gov/birds/. This appears to have been the only webpage on the FWS website dedicated specifically to the incidental take of migratory birds, and from this page, viewers had been able to navigate to several other pages with more specific information about threats to migratory birds.
Our comment also points to a breathtaking sweeping under the rug of the public record evidenced by the removal from the DOI Solicitor’s webpage of formal Opinion M-37041 related to incidental take. On February 6, 2017, the DOI removed the 30-page DOI Solicitor’s Opinion Memorandum M-37041 dated January 10, 2017, supporting continued incidental take prohibitions in the MBTA, from the DOI “Solicitor Opinions” page and replaced the memorandum with a one-page suspension memo. This effectively removed the Obama-era Solicitor Opinion from public view. Ten months later, on December 22, 2017, the DOI issued and posted Memorandum M-37050, an opinion that incidental take provisions do not apply to the MBTA. Solicitor Opinion M-37050 serves as the reference for the proposed revision to the MBTA at hand.
Incomplete and selective information in proposed rule systematically skews the public record
FWS builds a case for the necessity of the proposed rule in its Notice of Rulemaking, but does so by omitting substantial relevant information, including a biased selection of legal precedent, along with utilizing flawed arguments to support its position.
Among the most notable omissions is the failure of FWS to provide any information about potential impacts of this proposed rule. While it states that it will comply with the National Environmental Policy Act, which would require it to perform at minimum an environmental assessment, FWS neglects to discuss any of the information it has in hand from three years’ worth of effort developing an environmental impact statement for a possible permitting program to regulate incidental take. It is worth noting that work on that environmental impact statement and related program development were shut down after the issuance of Opinion M-37050.
The legal precedent FWS provides in the Notice of Rulemaking is incomplete and selectively biased. For example, the proposed rule leans heavily on dissenting opinions–specifically one dissenting opinion from Antonin Scalia in a 1995 case–to support its narrow interpretation of the term “take,” and neglects to discuss the majority opinion along with actual legal precedent emergent from that case.
In addition to a biased presentation of legal precedent, FWS presents other critical framing information in predisposed ways. For example, FWS presents this proposed rule as the sole avenue to create regulatory certainty for industries and American citizens with regards to prosecution under the MBTA. This is a clear fallacy of omission. In 2015, FWS approached this issue by proposing to develop a permit system for industries whose actions often result in accidental killing of birds. The three years’ worth of FWS work developing a programmatic environmental impact statement has not been acknowledged in this proposed rule, and the very idea of a permit system is readily dismissed due to the absence of current regulations creating a permit system. The irony is that this proposed rule could be a proposed rule to create a permit system. While it is true that, as FWS states, there is currently a “convoluted patchwork of legal standards” in applying the MBTA, the failure in logic here is to assert that decriminalizing incidental take is the only way to achieve a solution to that legal problem.
These obvious omissions of relevant information and options are disingenuous to the democratic process this public comment period embodies.
Wherever this proceeding and proposed rule leads, historic interpretation and application of incidental take provisions under the MBTA should be a matter of public record. EDGI’s comment urges the DOI and FWS to uphold the integrity of the notice-and-comment rulemaking process by restoring access to online resources relevant to the MBTA and incidental take. Our comment further exhorts the FWS to produce for the public a more complete and neutral account of the legislative, legal, and agency implementation history of the MBTA, the impacts resulting from those actions, and the potential impacts of severely curtailing critical protections for migratory birds intended under the MBTA.