The Memorandum reiterates that activities lacking the express purpose of killing or injuring these birds do not constitute prohibited takings under the MBTA. Although the Memorandum is expressed in general terms and is quite short, less than two pages, attached FAQs provide examples of activities that do not violate and that violate the MBTA. On one side of the spectrum are activities that do not have the explicit purpose of killing or injuring migratory birds, eggs or nests, even if an actor knows that they may result in killings or injuries. For example, painting a bridge where migratory birds nest, to improve the bridge; lighting an indoor chimney where migratory birds dwell, to heat the building; demolishing a deteriorated structure with migratory bird nests in it, to prevent the structure’s collapse; or spraying pesticides on a meadow where migratory birds roost, to eradicate pests. On the other side of the spectrum are activities with an explicit purpose to kill or injure migratory birds, their eggs or nests, including cleaning and destroying a nest affixed to a bridge before painting it; lighting a chimney during summer to destroy the nests; shooting migratory birds without a permit, for recreation; and applying pesticides to kill migratory birds. While these purposeful actions violate the MBTA and may result in criminal prosecution, the guidance appears to provide a roadmap for avoiding such conclusions.
Oil, mining and wind turbine operators, pesticide applicators and land developers that, without intending to do so, kill or injure migratory birds, their eggs or nests will benefit from the new MBTA interpretation. Note that this Memorandum does not impact eagle or endangered species take issues, which are protected by the Bald and Golden Eagle Protection Act and the Endangered Species Act.