Trump proposes rule to limit MBTA liability

The Trump administration is proposing a regulation to clarify that “injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing), is not prohibited by” the Migratory Bird Treaty Act (MBTA).  That is, the unintentional take of birds under the MBTA is not a crime.

This rule would formalize a legal opinion, issued by the current Office of the Solicitor, that MBTA does not prohibit incidental take. That opinion is directly contrary to an earlier legal opinion, issued by the solicitor's office under the Obama administration, that the MBTA does prohibit incidental take.  

The circuit courts of appeal are divided on the legal question, and the current solicitor’s opinion is being litigated by various environmental groups. Interestingly, the district court in that litigation held that the opinion was regulatory in nature and constituted final agency action (even though it was just a legal opinion), thus allowing those lawsuits to proceed.