CHRIS VAN HOLLEN COMMITTEES MARYLAND APPROPRIATIONS HART SENATE OFFICE BUILDING WASHINGTON DC 20510 BANKING. HOUSING, AND URBAN reassess ??nitt? #5005 BUDGET December 3, 2018 The Honorable Ryan Zinke Secretary US. Department of the Interior 1849 Street NW Washington, DC 20240 Dear Secretary Zinke: I am writing as follow-up to my questions to you during the hearing before the Interior, Environment, and Related Agencies Appropriations Subcommittee on May 10, 2018, and the Question for the Record I submitted after the hearing related to the Migratory Bird Treaty Act (MBTA). To date, the Department of the Interior (Department) has not responded to the Appropriation Committee?s Questions for the Record from the May 10. 2018 hearing. I ask that you both respond to those Questions for the Record, and answer my Speci?c questions below on the MBTA. As you know, the MBTA, a criminal statute enacted in 1918, makes it illegal for any person to ?pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, ship, transport. carry, receive at any time, or in any manner, any migratory bird, .. . or any part, nest, or egg of any such bird.? (emphasis added) 16 U.S.C. 703. For decades, the US. Fish and Wildlife Service took the position that any human activity which resulted in the death of protected migratory birds could be prosecuted as a misdemeanor under the MBTA. even if the death of the bird was unintended. Many courts upheld that interpretation of the law. My questions are solely related to MBTA penalties for the non-intentional killing or injury of migratory birds by companies responsible for oil spills. My questions are n_ot related to other penalties that could be collected under the Clean Water Act (CWA), or damages that could be collected in the aftermath of an oil spill through the Natural Resources Damage Assessment (NRDAR) program, such as damages under the Oil Pollution Act (GPA) or the CWA. First, below I have an excerpt from the Appropriations Committee transcript where we discussed the MBTA and future claims seeking ?nes or penalties for violations of MBTA after an oil spill. Van Hollen: Let me ask you another question related to damage from oil spills. I understand that changes you ?ve made with a reinterpretation of the Migratory Bird [Treaty] Act would mean oil companies responsible for oil spills would no longer have to pay damages for massive loss of bird life under the Migratory Bird Treaty [Act]. That was the finding, is that correct? STATE OFFICES MONTGOMERY COUNTY ANNE ARUNOEL 8: EASTERN SHORE BALTIMORE REGION WESTERN MARYLAND PRINCE GEORGE's 111 ROCKVILLE SOUTHERN MARYLAND 204 CEDAR 1900 NORTH HOINARO STREET 32 WEST WASHINGTON STREET COUNTY SUITE 960 60 WEST STREET SUITE 2001: SUITE 100 SUITE 203 1101 LANE HOCKVILLE, MD 20850 SUITE 107 CAMBRIDGE, MD 21613 BALTIMORF. MD 21213 MD 21740 SUITE 210 PHONE [3011 545?1500 ANNAFDLIS, MD 21401 PHONE [410} 221?2074 PHONE [667} 212?4610 PHONE {301) 797?2826 LARGO, MD 20774 FAX [301) 545?4512 PHONE [4101 253?1325 PHONE {301) 322?6560 Zinke: That is not correct In this question, you assert that it is not correct that under the new legal opinion, or M-Opinion (Solicitor?s Opinion M-3 7050 of December 22, 2017) of the MBTA, oil companies responsible for oil spills would no longer have to pay penalties for the massive loss of bird life under the MBTA. However, on April 1 1, 2018, then U.S. Fish and Wildlife Service Principal Deputy Director Greg Sheehan issued a Guidance Memo to Service Directorate on the M?Opinion affecting the MBTA. The memo includes a 5 page attachment entitled ?Frequently Asked Questions Regarding Implementation of the M-Opinion?. I have attached that document for your reference. Question 5 of that Frequently Asked Questions Document poses the question, ?How does the M- Opinion affect the Natural Resources Damage Assessment program speci?cally related to oil spills)?? And the answer Speci?cally states: ?In practice, however, the M-Opinion will have an effect on future claims seeking ?nes or penalties for violations of the MBTA from companies responsible for oil spills. and hazardous releases. In addition to pursuing damage claims under the NRDAR program, the Department has pursued MBTA claims against companies responsible for oil spills that incidentally killed or injured migratory birds. That avenue is no longer available.? The Guidance Memo issued to the U.S. Fish and Wildlife Service Directorate makes it clear that the Department will no longer have the avenue to pursue claims under the MBTA against companies responsible for oil spills that incidentally killed or injured migratory birds. Please clarify whether, going forward, the Department will be able to secure ?nes or penalties for violations of the Migratory Bird Treaty Act from companies responsible for an oil spill that incidentally and non-intentionally kills birds similar to the British Petroleum (BP) Deepwater Horizon disaster of 2010, which killed an estimated 1,000,000 migratory birds. As you are aware, in the aftermath of the BP Deepwater Horizon Oil Spill, BP pled guilty to one misdemeanor count of violating the MBTA. As part of the settlement, BP agreed to pay $100 million to the North American Wetlands Conservation Fund (NAWCF) to support projects focused on wetlands restoration and conservation in the United States, Canada and Mexico. The MBTA penalties were separate from the 14 other criminal counts against BP. My strong concern is that going forward, the option for the Department to collect penalties under the MBTA in the aftermath of an oil spill will no longer be available because of the changes made by the Opinion. Is this M?opinion consistent with the law, which states on its face that it applies to ?takes? in any manner? How is the M?Opinion justi?ed? Second, my understanding is that on May 24, 2018, legal actions were ?led in the U.S. District Court for the Southern District of New York, against the Department, the U.S. Fish and Wildlife Service, and the Department?s lawyer who authored the December 2017 M-Opinion. (National Audubon Soc?y et al. v. U.S. Dep?t of the Interior et al., Case 1:18-cv-04601 (?led May 24, 2018) Natural Resources Def. Council et al. v. U.S. Dep?t of the Interior et al., Case No. 1:18-cv-04596 (?led May 24, 2018) (S.D.N.Y.). Plaintiffs include conservation organizations and 8 states, including the State of Maryland. If in fact your statement to me on 2 May 10. 2018 was factual that ?it is not correct? that oil companies responsible for oil spills would no longer have to pay penalties for massive loss of bird life under the MBTA. please provide an explanation of what basis for which the Department is opposing these legal challenges. I look forward to a prompt response to these matters. rely, Chris Van Hollen United States Senator United States Department of the Interior FISH AND WILDLIFE SERVICE Washington, DC. 20240 intern APR 11 2015 Memorandum To: Service Directorate From: Principal Deputy Director M4 Subject: Guidance on the recent M-Opinion affecting the Migratory Bird Treaty Act To ensure consistency with the recently issued Opinion, the U.S.Fish and Wildlife Service (F WS) is modifying some policies and practices within its programs. This memorandum provides guidance to clarify what constitutes prohibited take, what actions must be taken when conducting lawful intentional take obtain a permit via 50 CPR. Part 21), and what changes to prior practice should be made in light of the M-Opinion. The M-Opinion concludes that the take of birds resulting from an activity is not prohibited by the META when the underlying purpose of that activity is not to take birds. We interpret the M- Opinion to mean that the prohibitions on take apply when the purpose of an action is to take migratory birds, their eggs, or their nests. Conversely, the take of birds, eggs or nests occurring as the result of an activity, the purpose of which is not to take birds, eggs or nests, is not prohibited by the MBTA. The mission of the Service is to work with others to conserve, protect, and enhance ?sh, wildlife, plants, and their habitats for the continuing bene?t of the American people. Migratory bird conservation remains an integral part of our mission. Further: 1. The Endangered Species Act (16 U.S.C. 35 1531 et seq.; BSA) and Bald and Golden Eagle Protection Act 16 U.S.C. 668-668c; Eagle Act), as well as some State laws and regulations are not affected by the M?Opinion. 2. The National Environmental Policy Act (N EPA, 42 U.S.C. 4321 et seq.) provides a process under which federal agencies must evaluate the impacts of their actions on the human environment [including the natural and physical environment and relationship of people with that environment (40 CPR. 1508.14)] and provide transparency to the American public. Birds are part of the human environment, and should be included in relevant environmental review processes as directed by NEPA. The Service will continue to work with any partner that is interested in voluntarily reducing impacts to migratory birds and their habitats. We will continue to develop best management practices to protect migratory birds and their habitats in partnership with any industry, federal, state, and tribal entity as interest dictates, and in the course of project review, will continue to provide recommendations through our advisory role under other authorities, including NEPA and the Fish and Wildlife Coordination Act (1 6 U.S.C. 661 ~667e). The Service will clearly communicate relevant authorities under which we make our recommendations. The Service will ensure that our comments, recommendations, or requirements are not based 011, nor imply, authority under the MBTA to regulate incidental take of migratory birds. Furthermore, the Service will not withhold a permit, request, or require mitigation based upon incidental take concerns under the MBTA. Attached is a set of questions and answers that serve to clarify the effect of the M-Opinion. If you have additional questions, please contact the Migratory Bird Program, 202-208-1050. Attachment ATTACHMENT FREQUENTLY ASKED QUESTIONS REGARDING IMPLEMENTATION OF THE 1. Clarity on the distinction between intent to take a bird versus knowing a bird will be taken. Does the underlying legality of an activity that takes birds affect that distinction and does reducing a bird to possession have any bearing on the situation? The following examples are real situations the Service may face under the new M-Opinion: b. A State Department of Transportation wants to paint a bridge. Prior to painting the bridge, all Barn Swallow nests are pressure washed off the bridge, which would result in destruction of eggs and death of nestlings. Is the intentional removal of nests prior to painting the bridge intentional take and does it require a permit prior to the action? Answer: Yes. The intentional removal of active barn swallow nests, killing eggs and nestlings, is an af?rmative act that has the taking of active nests and contents as its purpose. Because this example stipulates that the removal of nests prior to painting was purposeful, a permit would be required to legally authorize this activity. Ifthe intent was to simply paint the bridge and the nests were accidentally destroyed incidental to that process, that destruction would not violate the MBTA. A homeowner knows that Chimney Swifts are nesting in their chimney. If the homeowner lights a ?re and destroys the nests, is this considered intentional take or incidental take under the M-Opinion? Answer: Possibly either, but more information is needed to determine whether the homeowner lit the ?re to intentionally destroy swift nests or simply lit the ?re to heat the house. The difference between this activity and the previous example is the subjective purpose of the activity. The intentional destruction of chimney swift nests by lighting a ?re would constitute an intentional act, the purpose of which is to destroy nests. Whether lighting the ?re violates the MBTA in that scenario would also depend on whether nests are active and contain eggs, young, or adult birds that could not escape quickly enough. A permit would be required to legally authorize this activity if the purpose is to destroy nests and they are active. A permit would not be needed if the homeowner lit the ?re for the purpose of heating the house regardless of whether they were aware of swift nests in the chimney. Note that although knowledge of the presence of a nest or nests before lighting a ?re would not be enough by itself to constitute a violation of the Act, it could be used as evidence to show the homeowner did in fact light the ?re with the purpose of destroying the nests. c. Is removing a structure barn) with known nesting owls in the barn, which will die with the destruction of the barn, a violation of How does knowledge or reasonable foreseeability that that an activity will kill birds affect whether that action violates the Answer: This would not be a violation of the MBTA. Removing or destroying the structure would rarely if ever be an act that has killing owl nestlings as its purpose. Again, the purpose of the activity determines whether this is an MBTA violation. Unless the purpose of removing the structure was in fact to kill the owls, their deaths would be incidental to the activity of removing the ham. The landowner?s knowledge, or whether it was reasonably foreseeable, that destroying the barn would kill the owls is not relevant. All that is relevant is that the landowner undertook an action that did not have the killing of ham owls as its purpose. This same analysis would apply to other structures, such as bridges. d. A rancher shoots Black Vultures on his property without obtaining a dcpredation permit (50 C.F.R. 21.41 - Depredation Permits). The rancher leaves the dead birds without subsequently collecting (possessing) them. Does the desire to, or failure to reduce a bird to possession a?ect whether that action violates the Answer: Shooting Black Vultures without a permit violates the MBT A because it is an af?rmative action that has killing birds as its purpose. The traditional de?nition of the term ?take? includes reducing wildlife to human control, as noted in the M- Opinion. However, purposeful killing does not necessarily require any desire or af?rmative action to gain possession of the birds. Shooting and killing migratory birds renders them subject to human control whether or not the shooter physically takes possession of the bodies. In fact, this issue was expressly addressed in footnote 132 of the M-Opinion: ?We note that this language makes clear that the sort of ?human control? referred to by Justice Scalia includes the act of intentionally killing even in the absence of ?nther intent to reduce the particular animal to human possession. Thus, intentional killing is itself a form of ?human control?.? Note that shooting at and missing a black vulture would also be a violation (attempt), which obviously could not result in reducing the bird to possession. 2. How does the legality of an activity affect the determination of whether it is an MBTA violation or not? For example, if an illegal activity kills birds, but that was not the intent of the activity using a banned pesticide, or without following application labels in violation of Federal Insecticide Fungicide Rodenticide Act is this still considered an incidental taking that is not a violation of the Answer: The legality of an activity does not affect the determination of whether it results in an MBTA. violation. Thus, if the landowner in the example used the pesticide with speci?c intent to kill birds, it would violate the MBTA. However, if the landowner used a pesticide to purposely kill something other than migratory birds, it would not be a violation if birds die as 3. a result because the purpose of the act was not taking of birds. If the landowner used a pesticide with the general intent of killing wildlife, and the pesticide killed protected bird species, that could be a violation of the MBTA but liability would likely turn on the facts of the speci?c case. Note, applying a pesticide illegally in a way that ends up killing birds when they are not the intended target may not be an MBTA violation, but the fact that birds died may still provide additional evidence for prosecuting the FIFRA violation. How does the M?Opinion affect existing statutory amendments to the MBTA that speci?cally address incidental take, such as P.L. 107-314, See. 315 and subsequent regulation (50 C.F.R. 21.15 Authorization of take incidental to military readiness activities) or P.L. 114-94, Sec. 1439 (the FAST Act)? Answer: The M?Opinion does not affect the military-readiness rule at 50 C.F.R. 21.15, which was the result of Congress?s direction to the Secretary of the Interior to prescribe regulations authorizing incidental take of migratory birds during military-readiness activities. Thus, the Secretary could only withdraw the rule if directed to do so through subsequent legislation. As the M-Opinion explains, ?Congress was acting in a limited fashion to preempt a speci?c and immediate impediment to military-readiness activities.? M-Opinion, p. 31. FWS and the Department of Defense (DOD) should continue to follow the requirements of the military-readiness rule. Nonetheless, incidental take of migratory birds by DOD does not violate the MBTA, regardless of whether DOD is complying with the terms of the military- readiness rule. The FAST Act authorizes take of nesting swallows that interfere with bridge construction in certain circumstances. In most circumstances, such take would be considered purposeful and thus prohibited by the MBTA. Accordingly, the M-Opinion should not affect authorization of the take of active swallow nests. To the extent the FAST Act was intended to authorize incidental take, the terms of that statute should still be complied with for the same reasons discussed above for the military-readiness rule legislation. What effect does the M-Opinion have on current settlement agreement negotiations to address incidental take of migratory birds or court-mandated permits resulting from past settlement agreements? Answer: Current settlement agreement negotiations should not address incidental take of migratory birds for purposes of enforcing the MBTA, but may still include measures necessary to comply with other relevant statutes when appropriate (for example statutes implemented by the Natural Resource Damage Assessment and Restoration program (NRDAR, as explained below). The Department is currently reviewing the Service?s position on current negotiations to address incidental take of bald and golden eagles under the Eagle Act. These species are also covered under the MBTA. The Service has brought seven enforcement actions against companies for incidental take of eagles since 2015, which included both MBTA and Eagle Act charges. Only one of these remains unresolved; the other six were resolved through settlement agreements. The Service will no longer pursue MBTA charges against projects that cause eagle deaths, but the M-Opinion does not affect the Service?s ability to bring Eagle Act claims in these cases. We are not aware of any court-authorized settlement agreements that mandate obtaining a permit to cover ?iture incidental take of migratory birds under the MBTA. Since 2013, the Department of Justice has brought two prosecutions for take of eagles and species protected only by the MBTA. These prosecutions were resolved at the request of defendants based on MBTA violations only, although the conduct could also have been charged under the Eagle Act with regard to the eagle deaths. These plea agreements provided that companies must implement plans aimed at preventing bird deaths at eight commercial wind projects and apply for eagle permits to cover incidental take of eagles under the Eagle Act. The Service Chief of Law Enforcement?s Directive applying to civil administrative enforcement of avian take at Wind projects includes a limited option for settlements to resolve violations of the MBTA. However, that option is no longer operable after issuance of the M?Opinion. We are currently determining whether the M?Opinion will require the Service to revisit past settlement agreements that require ongoing implementation of best management practices to avoid or reduce incidental take of migratory birds by wind-energy facilities and other industrial activities. . How does the M-Opinion affect the Natural Resources Damage Assessment program speci?cally related to oil spills)? Answer: The M-Opinion does not directly affect the NRDAR program because statutory authorities that provide the basis for the program do not include the MBTA. Pursuant to Comprehensive Environmental Response Compensation and Liability Act, Oil Pollution Act, and Clean Water Act, the Departrnent is authorized to assess injury to natural resources caused by releases of hazardous substances and discharges of oil to compensate the public for lost natural resources and their services. The Department?s assessment of natural resource injuries under the NRDAR program include any injury to migratory birds, which in many cases could otherwise be classi?ed as incidental take. In practice, however, the M-Opinion will have an effect on future claims seeking ?nes or penalties for violations of the MBTA from companies responsible for oil spills and hazardous releases. In addition to pursuing damage claims under the NRDAR program, the Department has pursued META claims against companies responsible for oil spills that incidentally killed or injured migratory birds. That avenue is no longer available. . How does the M-Opiuion affect consultations or habitat conservation plans under sections 7 and 10 of the Answer: When processing Habitat Conservation Plans under Section 10 or consulting on Section 7 of the ESA, incidental take coverage should only include listed species listed under the ESA. As concluded in the M-Opinion, incidental take of migratory birds is not prohibited so no restrictions, minimization measures, or mitigation should be part of an incidental take permit or an incidental take statement for purposes of the MBTA (rather than the ESA). An applicant or federal government action agency can take voluntary measures related to migratory birds but it must be made clear that no such actions are required by the MBTA. 7. How does the M-Opinion a?'ect technical assistance under the Avian and Bat Conservation Plans? Answer: Technical assistance can still be given in development of Avian and Bat Conservation Plans. However, any suggestions or guidance related to migratory birds must be relayed as completely voluntary actions. Part of the technical assistance should include the statement that incidental take of migratory birds is not prohibited by the MBTA.