Natural Resources Defense Council, Inc. v. U.S. Department of the Interior

Background

Three consolidated cases challenged a December 2017 memorandum issued by Daniel Jorjani, then the Principal Deputy Solicitor of the Department of the Interior. The memorandum, called the Jorjani Opinion or M-37050, withdrew and replaced an earlier agency interpretation that had treated the Migratory Bird Treaty Act (MBTA) as prohibiting incidental takes and killings of migratory birds.

The MBTA makes it unlawful, unless regulations provide otherwise, to pursue, hunt, take, capture, kill, or attempt to do those things to protected migratory birds, nests, or eggs. The statute also says that the prohibition applies “at any time, by any means or in any manner.” For decades, the Department and the Fish and Wildlife Service had treated the law as covering bird deaths caused by activities such as oil spills, contaminated waste pools, power lines, commercial fishing equipment, and wind turbines, even when those activities did not target birds.

After the Jorjani Opinion, the Fish and Wildlife Service issued guidance stating that its policies should not rely on authority to regulate incidental bird deaths and that it would not withhold permits or require mitigation based on incidental-take concerns under the MBTA. Environmental organizations and eight States sued under the Administrative Procedure Act (APA), which allows courts to set aside agency action that is contrary to law or otherwise unlawful. The parties sought summary judgment, asking the court to decide the legal issue without a trial.

The court’s interpretation of the Jorjani Opinion

The plaintiffs read the Jorjani Opinion as adding an intent requirement to the MBTA’s misdemeanor provision. Interior argued that the memorandum addressed only which activities the statute covers, limiting the law to conduct “directed at” birds. Because the memorandum was imprecise, the court adopted Interior’s formulation for purposes of deciding the motions and analyzed whether the MBTA could be limited to activities directed at birds.

The court concluded that the Jorjani Opinion could not be squared with the statute’s text. The word “kill,” the court said, ordinarily means to deprive something of life and does not require that the conduct be aimed at the victim. The phrase “by any means or in any manner” also indicates that the method of killing does not determine whether the statute applies. The statute therefore does not distinguish between killing a bird with a gun or trap and killing one through activities such as dumping toxic waste or pressure-washing nests from a bridge, based solely on whether the activity was directed at birds.

The court rejected Interior’s reliance on surrounding statutory terms such as “hunt,” “pursue,” and “capture” to narrow “kill.” It also rejected arguments based on constitutional avoidance, vagueness, absurd results, and legislative history. In the court’s view, the statute is broad but not vague, and its breadth allows it to address modern threats to migratory birds. The court noted that proximate-cause principles and agency regulations could limit unreasonable applications, but those considerations did not justify rewriting the statute.

The court also found that the Jorjani Opinion was not entitled to deference under the less demanding Skidmore standard, which gives weight to an agency interpretation according to its persuasive power. The opinion represented a sudden departure from more than forty years of agency interpretation and enforcement practice, was issued informally without notice-and-comment procedures, and lacked evidence of input from the Fish and Wildlife Service, the agency responsible for administering the MBTA.

Ruling and remedy

The court held that the Jorjani Opinion’s interpretation of the MBTA was contrary to law under the APA. It did not decide whether every form of habitat destruction or every causally distant bird death falls within the statute; it specifically stated that the scope of habitat destruction was not before it.

Judge Valerie Caproni granted the plaintiffs’ motions for summary judgment and denied the defendants’ motion for summary judgment. The court vacated the Jorjani Opinion, M-37050, and remanded the matter to the agency for further proceedings. It declined to remand without vacatur because Interior had not shown that vacating the memorandum would disrupt enforcement or other agency activities.