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A Pendulum Seldom Stops in the Middle: Shifting Views on “Take” of Raptors and Other Migratory Birds

July 2018

Citation: 48 ELR 10555

Issue: 7

Author: David Freudenthal, Steven P. Quarles, and Rebecca Barho

This Comment provides background on the evolution of the expanded reach of the Migratory Bird Treaty Act (MBTA) take prohibition as interpreted in multiple FWS policies, and the contradictions inherent in those policies. To illustrate the problems with FWS’ mutating interpretation of the MBTA, the Comment focuses on oil and gas development on public lands. While the discussion here primarily addresses protections afforded to raptors, the MBTA covers nearly every bird species in the United States. And while raptors are among the more than 1,000 bird species protected under the MBTA, certain raptor species are also protected pursuant to the ESA or the Bald and Golden Eagle Protection Act. The Comment also includes a brief discussion of the issues of prosecutorial and/or enforcement discretion, the potential for litigation by third parties, relevance of the Federal Land Policy and Management Act, and application of the FWS Buffer Zone Policy and expansive interpretation of the term “take” under the MBTA to private lands and private actions.

David Freudenthal is a former Governor of Wyoming and U.S. Attorney for the District of Wyoming. Steven P. Quarles is a Partner in Nossaman, LLP, in Washington, D.C. Rebecca Barho is an Associate in Nossaman LLP, in Austin, Texas.

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