The Migratory Bird Treaty Act: Flight of Fancy or Enduring Change?

The Trump Administration has issued a proposed rule, 85 Fed. Reg. 5915 (February 3, 2020), that would codify its interpretation of the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq., as applying only to the direct take of birds subject to the Act. For decades, the federal government interpreted the MBTA as criminalizing both the direct (intentional) and incidental (unintentional and incident to an otherwise lawful activity) take of birds, their nests, and eggs covered by the Act. Permission could be obtained for direct take, for example for hunting or for control of nuisance birds,...

The CFTC Proposes a New Approach to Federal Position Limits - Will This One Stick?

At its open meeting held on January 30, 2020, the Commodity Futures Trading Commission ("CFTC" or "the Commission") approved a proposed rulemaking to institute federal position limits in an effort to prevent excessive speculation, squeezes, and corners in both futures positions and "economically equivalent" swaps for certain specified commodities. The vote was 3-2 with all Republicans supporting and all Democrats opposing. The proposal approved on January 30 is the Commission’s latest effort to propose position limits as part of its implementation of the Dodd-Frank Act. The initial rules,...