On August 11, 2020 the US District Court for the Southern District of New York struck down the Department of Interior’s 2017 letter of interpretation of the Migratory Bird Treaty Act (MBTA). The Migratory Bird Treaty Act is one of the country’s longest-standing protections of animal species and makes it unlawful without a waiver or permit to pursue, hunt, take, capture, kill, or sell birds listed as migratory birds. The 2017 letter of interpretation removed penalties for activities or hazards, such as power line electrocutions, that result in the accidental or “incidental” taking of a bird. While this decision prevents the Department of Interior from enforcing the letter of interpretation, it does not directly impact the Department’s proposed rulemaking that will incorporate the actions directed by the letter. The letter has also been challenged in other Federal Court districts and there is the possibility of split decisions. If this occurs, the case is likely to reach the Supreme Court.
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