Congressman Alan Lowenthal (CA-47) joined with co-leads Congressmen Brian Fitzpatrick (PA-01) and Mike Thompson (CA-05) and 63 of their House colleagues in calling on the Biden Administration’s Department of the Interior (DOI) to adopt specific recommendations to restore and strengthen protections to the century-old Migratory Bird Protection Act (MBTA) that were stripped away during the Trump presidency.
In a bipartisan letter to President Biden, the Members applaud the president for announcing a delay and reevaluation of the Trump-era MBTA rule that threatened millions of migratory birds as well as offers praise for the March 8, 2021 announcement that the Biden DOI would rescind the unlawful Trump-era DOI Solicitor’s opinion used to draft the Trump Administration rule.
The MBTA has been used for decades to mitigate, through permitting of industrial and commercial activity, incidental bird deaths. Even when these deaths have not been avoided, the MBTA has been a critical tool to invest the penalties levied against violators toward the recovery of impacted species.
The Trump Administration’s efforts to eliminate these important protections within the MBTA initially occurred on December 22, 2017, when the Trump DOI Solicitor’s office published its legal opinion claiming that the MBTA does not cover incidental take. The opinion was later ruled unlawful by the U.S. District Court for the Southern District of New York, which found that the reinterpretation “runs counter to the purpose of the MBTA”. Despite the ruling, the Trump Administration continued with the rule making process based on the unlawful Solicitor’s opinion and on January 7, 2021—just days before leaving office—the Trump DOI issued a new rule eliminating incidental take protections in the MBTA.
In addition to praising the Biden Administration plan to delay and reevaluate the Trump-era rule, the Members suggest to that the Biden DOI can simultaneously protect migratory birds while offering stakeholders regulatory certainty by, “…establishing a regulatory general-permit framework based on best management practices that provide legal coverage for a variety of activities that commonly take migratory birds incidentally.” The Members specifically cite the framework that was listed in the Fish And Wildlife Service Environmental Impact Study, under its “Alternatives Considered but Not Carried Forward for Further Review” as well as set out in the bipartisan Migratory Bird Protection Act (H.R. 5552 in the 116th Congress) in the House of Representatives.
The Members concluded, “We applaud your Administration’s efforts to overturn this rulemaking and instead focus on efforts that protect and sustain migratory bird population and uphold our international treaty obligations.”