Department of the Interior Revises Interpretation of Migratory Bird Take Prohibition

On December 22, 2017 the Department of the Interior (“DOI”) Solicitor’s Office issued its revised interpretation of the Migratory Bird Treaty Act’s (“MBTA”) prohibition on the take of migratory bird species.  Official opinions from the DOI Solicitor’s Office are known as “M Opinions” and carry substantial weight in how DOI applies and enforces the various wildlife laws under its purview.  In January 2017, the prior DOI Solicitor issued Opinion M-37041, Incidental Take Prohibited Under Migratory Bird Treaty Act, which concluded that “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.”  Less than a month after Opinion M-37041 was issued, the Acting Secretary of the Interior issued a memorandum temporarily suspending Opinion M-37041, pending a review by the new Acting Solicitor. The December 22, 2017…

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