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<br />individuals, and not to the Federal Government [Sierra Club v. Martin, 113 F 3d 15 (11" Cir.
<br />1997); Newton Cty Wildlife Assn v. U.S. Forest Service, 113 F 3d 110 (81" Cir. 1997)]. Since
<br />the Federal Government decided not to appeal Humane Society v. Glickman, and because all
<br />Federal agencies are subject to the jurisdiction of the District of Columbia Circuit, the Service
<br />will implement the MBTA consistent with this decision.
<br />Federal agencies are consequently required to obtain permits for activities covered by migratory
<br />bird permit regulations (50 CFR Part 21). Director's Order 131 (December 20, 2000) clarified
<br />that permits from the Service are required for any action resulting in intentional take of
<br />migratory birds. Permits are not issued for the unintentional take of migratory birds, including
<br />raptors. Unintentional take is prohibited by the MBTA.
<br />The MBTA does not contain any prohibition that applies to the destruction of a migratory bird
<br />nest alone (without birds or eggs), provided that no possession occurs during the destruction
<br />(Migratory Bird Permit Memorandum, April 15, 2003). The MBTA specifically protects
<br />migratory bird nests from possession, sale, purchase, barter, transport, import, export, and take.
<br />The other prohibitions of the MBTA-capture, pursue, hunt, and kill-are inapplicable to nests.
<br />The full text of the nest policy memorandum can be found in Appendix E.
<br />Executive Order (EO) 13186
<br />Executive Order 13186 (66 FR 3853, January 17, 2001) reinstated the responsibilities of Federal
<br />Agencies to comply with the Migratory Bird Treaty Act of 1918. The Executive Order
<br />establishes a process for Federal Agencies to conserve migratory birds by avoiding or
<br />minimizing unintentional take and taking actions to benefit species to the extent practical. The
<br />EO, while not eliminating the possibility of violations of the MBTA, is designed to assist Federal
<br />Agencies in their efforts to comply with the MBTA.
<br />Bald and Golden Eagle Protection Act (BGEPA); 16 U.S.C. 668
<br />Specific protection for bald and golden eagles is authorized by the BGEPA. It is illegal to take,
<br />possess, sell, purchase, barter, or transport any bald or golden eagle, alive or dead, or any part,
<br />nest, or egg thereof. "Take" includes to pursue, shoot, shoot at, poison, wound, kill, capture,
<br />trap, collect, molest, or disturb (50 CFR 22.3). Recent case law [U.S. v. Moon Lake Electric
<br />Association, Inc. (98-CR-228-B; 10th Circuit 1998)] concluded that proscription against killing
<br />birds, contained in the MBTA and the BGEPA, applies to both intentional and unintentional
<br />harmful conduct and is not limited to physical conduct normally exhibited by hunters and
<br />poachers.
<br />The BGEPA was amended in 1978 to authorize the Secretary of the Interior to publish
<br />regulations that may permit the taking of golden eagle nests that interfere with resource
<br />development or recovery operations which are operations including but not limited to mining,
<br />timbering, extracting oil, natural gas and geothermal energy, construction of roads, dams,
<br />reservoirs, power plants, power transmission lines, and pipelines, as well as facilities and access
<br />routes essential to these operations, and reclamation following any of these operations. Thus, the
<br />Service provides for the issuance of permits to "take" inactive golden eagle nests that interfere
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