By: Jaclyn Bragano

In an area of law that had been unchanged for nearly fifty years, a 2017 federal memorandum[1] rocked the migratory bird boat, prompting years of contradictory opinions and controversial rulemaking.  The last few years have brought inconsistency and confusion in the context of migratory bird protections as opposing administrations batted back and forth over the interpretation of the Migratory Bird Treaty Act[2] (“MBTA” or “the Act”).

The MBTA was first enacted in 1918 to implement the 1916 international conservation treaty between the United States and Canada to “sav[e] from indiscriminate slaughter and [ensure] the preservation of [] migratory birds.”[3]  Since enactment, it has been amended multiple times, most notably when the United States signed similar treaties with Mexico in 1936, Japan in 1972, and Russia in 1976.[4]  Throughout the amendments, the MBTA remained consistent in its prohibition on “taking” protected migratory bird species “by any means . . . or in any manner” without prior authorization by the Department of the Interior (“DOI”) U.S. Fish and Wildlife Service (“FWS”).[5]  This prohibition was consistently interpreted to strictly penalize both the intentional and incidental “taking” of migratory birds as a federal crime, which includes actions such as killing, capturing, selling, trading, and transporting the protected birds.[6]

Notably, the incidental take prohibition was key in holding BP responsible for the extraordinary damage caused by its 2010 Deepwater Horizon oil spill, which is believed to have killed around one million birds in the Gulf Coast.[7]  BP was fined $100 million under the incidental take interpretation of the MBTA.[8]  Over $64 million went directly to help the birds impacted by the spill and to restore over 350 thousand acres for the birds.[9]  Unfortunately, in 2017, the MBTA lost half its effect when the Trump Administration determined that the Act did not actually protect migratory birds from incidental killings, only intentional killings.[10]  Under this interpretation, BP would not have been held liable under the MBTA for its unintentional destruction, and that $64 million would have never gone to the birds.

Before the DOI changed its interpretation of the MBTA in December 2017, it had consistently applied the migratory bird protections since the 1970s.[11]  At first, the Act was crucial to combat the over-hunting and poaching that decimated the bird populations in the early 1900s.[12]  Now, because “industrial activities [have] emerged as the most significant threat to bird populations,”[13] the MBTA is crucial to prevent “gross negligence by companies that simply do not recognize the value of birds to society or the practical means to minimize harm.”[14]  It is estimated that, per year, power poles electrocute between 900 thousand and 11.6 million birds, collisions with wind turbines kill 234 thousand birds, and oil pits kill 750 thousand birds.[15]  The incidental take prohibition pushes companies to more carefully consider where they place their structures and more prudently contemplate what the environmental impacts of their actions will be in this context.  Without this prohibition, as long as companies don’t intend to kill the birds, under the MBTA, they would face no barriers or consequences to building hard-to-see power lines in known migratory flight paths, for example.  According to Endangered Species Director, Noah Greenwald, at the Center for Biological Diversity, if there is no incidental take prohibition, then “[v]ast numbers of birds will be electrocuted by power lines, drowned in oil waste pits and killed in other easily preventable ways.”[16]

Recognizing the importance of the incidental take interpretation of the MBTA, the Obama Administration DOI formally announced its intent to regulate incidental takes in a 2015 Federal Register notice, hoping to clarify the oft-questioned provision.[17]  More so, in January 2017, just before the transition of powers, the DOI’s then-solicitor, Hilary Tompkins, issued a memorandum that confirmed the DOI’s “long-standing interpretation that the MBTA prohibits incidental takes.”[18]  However, within that year, the new Trump Administration DOI Principal Deputy Solicitor, Daniel Jorjani, pulled a 180 on decades of precedent and issued a new memorandum stating that the MBTA did not prohibit incidental takes, only intentional ones, thus replacing the Tompkins opinion.[19] 

Several environmental groups, as well as multiple states, filed suit to vacate this action.[20]  In August 2020, U.S. District Judge Valerie Caproni decided that Jorjani’s opinion was an “unpersuasive interpretation of the MBTA’s unambiguous prohibition on killing protected birds” and was contrary to law.[21]  Thus, Judge Caproni vacated the Jorjani opinion.[22]

Still, the fight over this interpretation did not end.  The Trump Administration immediately appealed Judge Caproni’s decision to the Second Circuit.  Even further, despite the federal judge holding Jorjani’s 2017 opinion as contrary to law, the Administration made a last-minute push in its final months to promulgate its interpretation through formal rulemaking.[23]  The DOI published its environmental impact statement (“EIS”) in November 2020 and finalized the rule on January 5, 2021, with the intended effective date of February 8, 2021.[24]  In its EIS, the DOI recognized that the policy change would likely result “in increased bird mortality,” but that it would likely reduce “legal and financing costs with improved legal certainty of regulation.”[25]

However, once in office, the Biden Administration quickly took action to counteract these movements.  On February 25, 2021, the Administration withdrew the appeal to the Second Circuit, moving to leave the August decision by Judge Caproni in place, and no longer fighting for reinstatement of the Jorjani opinion.[26]  Additionally, the Biden Administration pushed back the effective date of the Trump Administration’s final rule from February 8, 2021 to March 8, 2021, inviting public comment in the interim.[27]

Nevertheless, on March 8, the Trump-era rule became effective.  Importantly, the Biden Administration DOI was quick to release a statement that same day, formally rescinding the 2017 Jorjani opinion.  In accordance with that erasure, the DOI subsequently announced its intent to propose a new rule that would soon replace the just-enacted Trump Administration rule.[28]  Thus, the Trump-era rule’s days are numbered right out of the gate, and the migratory birds will hopefully benefit from their fair share of protections again soon.

While it is clear that the Biden Administration is supportive of more expansive protection for the migratory birds than the Trump Administration, it is not yet clear what those protections will be.  The DOI stated that it would “reconsider its interpretation of the MBTA to develop common sense standards that can protect migratory birds and provide certainty to industry.”[29]  Because the formal rulemaking process can be long, it is imperative that the Biden Administration gets the ball rolling on reversing the rollback of protections.  Indeed, as Judge Caproni stated in reference to To Kill a Mockingbird, “[i]t is not only a sin to kill a mockingbird, it is also a crime.”[30]

[1] Memorandum from Daniel Jorjani, Principal Deputy Solicitor, to Acting Secretary et. al, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take (Dec. 22, 2017),

[2] 16 U.S.C. § 703–12.

[3] Convention Between the United States and Great Britain for the Protection of Migratory Birds in the United States and Canada, Gr. Brit.-U.S., Aug. 16, 1916, T.S. No. 628.,; Migratory Bird Treaty Act, U.S. Fish & Wildlife Serv. (Apr. 16, 2020),

[4] Migratory Bird Treaty Act, supra note 3.

[5] Migratory Bird Treaty Act of 1918, Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service, U.S. Fish & Wildlife Serv. (Aug. 8, 2017),

[6] 16 U.S.C. § 704.  A taking is intentional when it is a direct take, such as hunting or poaching, whereas incidental takes have been defined in other contexts by FWS as takes that are “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”  16 U.S.C. § 1539(a).

[7] Andy McGlashen, Biden Administration Says it Will Revoke Trump Rule that Let Companies Kill Birds, Nat’l Audubon Soc’y (Mar. 8, 2021),

[8] Id.

[9] The Migratory Bird Treaty Act, Explained, Nat’l Audubon Soc’y (Jan. 26, 2018),

[10] Jorjani, supra note 1.

[11] “From the early 1970s until 2017, Interior interpreted the MBTA to prohibit incidental takes and kills, imposing liability for activities and hazards that led to the deaths of protected birds, irrespective of whether the activities targeted birds or were intended to take or kill birds.”  NRDC v. U.S. Dep’t of Interior, 478 F. Supp. 3d 469, 473 (S.D.N.Y. 2020).

[12] Kristina Rozan, Brief Summary of the Migratory Bird Treaty Act, Animal Legal & Hist. Ctr. (2014),

[13] NRDC, 478 F. Supp. 3d at 473.

[14] Letter from Lynn Scarlett, Deputy Sec’y of the Interior et al., to The Honorable Ryan Zinke, Sec’y of the Interior (Jan. 10, 2018),

[15] Pamela King & Michael Doyle, Judge Restores Migratory Bird Protections, E&E News (Aug. 12, 2020),

[16] Keith Goldberg, Trump Admin. Sews Up Policy Shift on Migratory Bird Killing, Law360 (Jan. 5, 2021),

[17] Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 Fed. Reg. 30,032 (May 26, 2015).

[18] Memorandum from Hilary Tompkins, Principal Deputy Solicitor to Acting Secretary, Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 10, 2017).

[19] NRDC v. U.S. Dep’t of Interior, 478 F. Supp. 3d 469, 478 (S.D.N.Y. 2020) (“The Opinion is a recent and sudden departure from long-held agency positions backed by over forty years of consistent enforcement practices.”).

[20] Id. at 471.

[21] Id. at 480–81.

[22] Id. at 489.

[23] Michael Phillis, Trump Admin. Advances Policy Shift on Migratory Bird Killing, Law360 (Nov. 30, 2020),

[24] Goldberg, supra note 16.

[25] Id.

[26] Michael Phillis, Feds Drop 2nd Circ. Challenge of Migratory Bird Protections, Law360 (Feb. 26, 2021),

[27] Id.

[28] McGlashen, supra note 7.

[29] Michael Doyle, Interior Grounds Trump-era Migratory Bird Legal Restrictions, E&E News (Mar. 8, 2021),

[30] NRDC v. U.S. Dep’t of Interior, 478 F. Supp. 3d 469, 471 (S.D.N.Y. 2020).

Flowers and candles at the steps of the Supreme Court building in remembrance of Justice Ruth Bader Ginsburg. Photo by Gayatri Malhotra.

By Jacqueline K. Winters

On Sept. 26, less than two months before the election, President Donald Trump announced Amy Coney Barrett as his nominee for the Supreme Court.[1]  Considering Senate Majority Leader Mitch McConnell’s plans to swiftly move forward with the confirmation process and begin hearings on Oct. 12, it is likely that the Senate will confirm Barrett, a conservative and former clerk of Antonin Scalia’s,[2] before the November election.[3] Meanwhile, President Trump is employing rhetoric about voter fraud and a rigged election[4]—likely positioning himself to bring an Electoral College battle in front of the Court.[5] If history is precedent, a 6–3 conservative versus liberal Supreme Court composition would undoubtedly lend itself to a more favorable outcome for President Trump. The American public should anticipate that the confluence of these circumstances could result in Bush v. Gore[6]2.0—but this time, the battle may extend well beyond hanging chads.

There are a number of scenarios that could lead to the Supreme Court determining the fate of this election. One example, presented by Edward Foley of Ohio State University’s Moritz College of Law, would take place in the swing state of Pennsylvania.[7] If Trump is in the lead on election night, but Biden-friendly mail-in ballots flood in during the days following the election, a volatile partisan dispute could erupt.[8] In this scenario, Democratic Governor Tom Wolf could sign Pennsylvania’s certificate of ascertainment and list Democratic electors as the official Electoral College slate, while the Republican-led legislature appoints a different set of electors—a scenario that would result in legal challenges, possibly making its way up to the Supreme Court.[9] However, the Electoral Count Act of 1887[10] delegates the power to Congress to consider both sets of electors. Vice President Mike Pence could oversee the count in Congress, determining that Pennsylvania’s votes should be removed because the electoral slates conflict, causing Democrats to seek an injunction to stop this discount of Pennsylvania’s votes.[11] This is merely one illustration of partisan-fueled chaos that could ensue if there is a small margin between President Trump and Vice President Joe Biden on election night—a scenario ominously reminiscent of the 2000 election, but in an even more sharply divided political climate.[12] 

On Dec. 12, 2000, The United States Supreme Court announced in a 5–4 decision that the Supreme Court of Florida had violated the United States Constitution when it ordered a ballot recount in certain Florida districts.[13] In this historic decision, which resulted in George W. Bush assuming the presidency, the Court contended that the ballot recount violated the Equal Protection Clause of the Fourteenth Amendment because Florida counties were shifting vote-counting standards.[14] The Court’s decision reversed the Florida Supreme Court’s decision and stayed the manual recount of 42,000 “undervotes”—ballots on which automatic machine recounts had failed to detect a vote and which had not yet been manually recounted.[15] The decision was premised on the notion that the recount procedures—based on the clear intent standard, which required “‘a clear indication of the intent of the voter’”[16]—“did not satisfy [the] minimum requirement for non-arbitrary treatment of voters necessary, under the Equal Protection Clause, to secure [the] fundamental right to vote for President.”[17]

Since the 2000 decision, a holding the Court explicitly stated was “limited to the present circumstances,”[18] the precedential value of Bush v. Gore has been decidedly weak.[19] In Stewart v. Blackwell,[20] pertaining to Ohio’s use of punch card ballots and central-count optical scan systems, the U.S. District Court for the Northern District of Ohio’s relied upon Justice Souter’s dissent in Bush v. Gore to determine that different counties within the same state using different systems does not amount to a violation of the Equal Protection Clause.[21] The Sixth Circuit disagreed, reversing and remanding the district court’s decision.[22] In 2008’s Lemons v. Bradbury,[23] a plaintiff argued in front of the Ninth Circuit that county election officials lacking uniform statewide rules for verifying referendum signatures violated the rule set forth in Bush v. Gore.[24] The Ninth Circuit disagreed, stating that Oregon’s verification process did not violate voters’ constitutional rights.[25] 

In large part, lower court decisions that have relied on Bush v. Gore have generally been overturned or limited,[26] and until 2013, when Justice Clarence Thomas cited the case in a footnote of a dissenting opinion in an Arizona voter-registration case,[27] the Supreme Court had not cited the case for any proposition. Recently, however, President Trump and his campaign have invoked the case in legal battles in Nevada[28] and New Jersey,[29] undoubtedly in preparation for mounting a Bush v. Gore-inspired argument in front of the Supreme Court in November.

President Trump’s continued efforts to challenge the legitimacy of mail-in voting—despite the FBI’s findings that there is no evidence of any foreign plot to counterfeit or forge mail ballots[30]—are likely representative of his willingness to be fiercely litigious in November.  With a more-likely-than-not conservative Court and murky-at-best precedent, the November election will prove an uphill battle for Democrats. The precedential value of Bush v. Gore will be in the spotlight for the first time since 2000, and the Supreme Court will possibly provide clarity on this debated issue—potentially changing the course of American presidential elections for generations to come.

[1] Peter Baker & Nicholas Fandos, Trump Announces Barrett as Supreme Court Nominee, Describing Her as Heir to Scalia, N.Y. Times (Sept. 26, 2020),  

[2] Id.

[3] Deirdre Walsh, What Amy Coney Barrett’s Supreme Court Nomination Means for the 2020 Election, Nat’l Pub. Radio (Sept. 27, 2020, 7:00 AM),  

[4] Miles Parks, Ignoring FBI and Fellow Republicans, Trump Continues Assault on Mail-In Voting, Nat’l Pub. Radio  (Aug. 28, 2020, 12:46 PM),

[5] Jeet Heer, Trump Wants Another ‘Bush v. Gore, The Nation (Sept. 23, 2020),

[6] 531 U.S. 98 (2000).

[7] Geoffrey Skelley, What If Trump Loses and Won’t Leave?, FiveThirtyEight (Sept. 14, 2020, 9:15 AM),

[8] Id.

[9] Id.

[10] Id.; see Electoral Count Act, ch. 90, 24 Stat. 373 (1887) (codified as amended at 3 U.S.C. §§ 5–7, 15–18).

[11]  Skelley, supra note 7.

[12] Dean Bonner, Voter Registration Is Up Sharply, as Is Partisanship, Pub. Pol’y Inst. of Cal. (Aug. 27, 2020),

[13] Bush v. Gore, 531 U.S. 98, 103 (2000).

[14] Id. at 106.

[15] Id. at 100.

[16] Id. at 131.

[17] Id. at 98.

[18] Id. at 109.

[19] Chad Flanders, Please Don’t Cite This Case!: The Precedential Value of Bush v. Gore, 116 Yale L.J. Pocket Part 141, 144 (2006),

[20] Stewart v. Blackwell, 356 F. Supp. 2d 791 (N.D. Ohio 2004), rev’d in part, vacated in part, 444 F.3d 843 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007).

[21] Id. at 808.

[22] Stewart v. Blackwell, 444 F.3d 843, 880 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007).

[23] 538 F.3d 1098 (2008).

[24] Id. at 1105.

[25] Id. at 1107.

[26] Richard L. Hasen, The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 Geo. Wash. L. Rev. 1865, 1867 (2013).

[27] Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 35 n.2 (2013) (Thomas, J., dissenting); see Joan Biskupic, Trump Revives Bush v. Gore in His Crusade Against Mail-In Voting, CNN Pol. (Aug. 24, 2020),  

[28] United States District Court Judge James Mahan dismissed the Trump campaign’s case in Nevada, stating that a law that calls for mail-in ballots to be sent automatically to all active Nevada voters in light of the coronavirus pandemic did not demonstrate any constitutional harms. See Donald J. Trump for President, Inc. v. Cegavske, No. 20-CV-1445, 2020 WL 5626974, at *7 (D. Nev. Sept. 18, 2020); see also Michelle L. Price, Judge Dismisses Trump Challenge to Nevada Mail Voting Law; Associated Press (Sept. 21, 2020),; Biskupic, supra note 27.

[29] See Complaint for Declaratory & Injunctive Relief at 155, Donald Trump for President, Inc. v. Murphy, No. 20-CV-10753, (D.N.J. Aug. 18, 2020), ECF No. 1; see also Biskupic, supra note 27.

[30] Parks, supra note 4.