It’s Always Windy in McCain Valley: Vicarious Liability Under the Migratory Bird Treaty Act

George A. Croton

Volume 69, Issue 2, 647-674

This Note considers whether a federal agency that grants a license, lease, or permit to a wind farm developer can thereafter be held vicariously liable for the developer’s violations of the Migratory Bird Treaty Act’s (“MBTA”) “take provisions.” It concludes by positing that a federal agency can justifiably and logically be held vicariously liable in situations where the violation was both foreseeable and inevitable.

Part I provides background to the question, discussing a recent circuit split over the question, the interplay of the MBTA and the Administrative Procedure Act, and an older circuit split over the meaning of the word “take” as applied to the MBTA. Part II frames the various arguments made in the two cases that resulted in the recent circuit split over the potential for federal agency vicarious liability. Part III analyzes the text, history, and purpose of the MBTA; compares the issue of MBTA vicarious liability to a similar and instructive line of cases arising under the Endangered Species Act; and presents an argument for a “middle ground,” where federal agencies can be held vicariously liable for not securing a take permit in scenarios where the developer they are licensing will inevitably commit a violation of the MBTA.

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