2008-08-08_APPLICATION CORRESPONDENCE - C2008086

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DRAFT DRAFT DRAFT from Human and Land Use Disturbances in the Mountain-Prairie Region, U.S. Fish and Wildlife Service. Objectives of these guidelines are to maintain and enhance all raptor populations in the Region by avoiding, minimizing, or mitigating effects of the following human induced impacts: • Physical destruction of important raptor habitat components; • Disturbance resulting in displacement of raptors from high-valued habitat and use areas during crucial time periods (i.e., nesting, winter roosting); • Direct human caused stress, physical impairment, or mortality; and • Environmental degradation and contamination. These guidelines are intended to provide land use planners and resource managers with raptor protection recommendations within the area of influence of land use activities. Protection of nesting, wintering, and foraging activities is considered essential. Implementation of these guidelines is recommended whenever there is potential for an action or project to negatively affect these birds or supporting resources. REGULA TOR Y A UTHORI TY Raptors as a group are considered migratory birds. As such, Federal and State protection is provided for raptors and their habitat through various legal mandates. The following are brief descriptions of provisions included in applicable Federal and State laws: Migratory Bird Treaty Act (META); 16 U.S.C. 703-712 Under authority of the MBTA, it is unlawful to take, kill, or possess migratory birds, their parts, nests, or eggs. Take is defined (50 CFR 10.12) as to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect. Proscription against killing birds, contained in the MBTA and the BGEPA, applies to both intentional and unintentional harmful conduct and is not limited to physical conduct normally exhibited by hunters and poachers [U.S. v. Moon Lake Electric Association, Inc. (98-CR-228-B; 10th Circuit 1998)]. When taking of raptors, their parts, nests, or eggs is determined by the applicant to be the only alternative, application for Federal and tate permits must be made through the appropriate authorities. Migratory Bird Permits must be obtained through the Service's Migratory Bird Permit Office for take of raptor nests (50 CFR 13, 21). The list of migratory birds protected by the MBTA includes raptors and is found in 50 CFR 10.13. On July 18, 2000, the United States Court of Appeals for the District of Columbia Circuit held in Humane Society V. Glickman, 217 F. 3d 882 (D.C. Cir. 2000), that the MBTA applies to Federal agencies. The United States had previously taken the position that the MBTA only applied to