Fowl Play Directed at the Migratory Bird Treaty Act

We know birds sing, but if they could talk, they might tell us they’re upset about attempts in Congress to undercut a federal law that has been protecting them for almost a hundred years — the Migratory Bird Treaty Act.

Snowy Owl

The Migratory Bird Treaty Act was passed a hundred years ago.

The Migratory Bird Treaty Act (MBTA) arose from the unrestrained commercial and recreational hunting of birds in the nineteenth century, including for ladies’ hats(!), such that hundreds of species were in danger of extinction. The concern and severity of the situation became so great that, even in the midst of World War I, the United States entered into a treaty with Great Britain (acting on behalf of Canada) to protect birds migrating between Canada and the United States. The United States implemented the treaty when President Woodrow Wilson signed the MBTA into law in 1918 making it unlawful to “pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect” listed species without a permit.

Laysan Albatross, Laysan Island, Papahānaumokuākea Marine National Monument

Why is the MBTA important?

This landmark conservation law has been successfully protecting migratory birds for a century, including cranes, egrets, yellow-billed cuckoos, doves, hummingbirds, raptors and hundreds of other species. In fact, it has been credited with preventing the extinction of the snowy egret, which was on the verge of extinction due to hunting. The MBTA is particularly important for bird species that are not protected by other federal statutes, such as the Endangered Species Act.

Sandhill Cranes, Jasper-Pulaski State Fish and Wildlife Area, IN

Why do migratory birds need protection?

While bird feather-adorned hats are long out of fashion, the MBTA is no less important for today’s birds that face many new modern threats — from oil spills to expanding modern infrastructure. The U.S. Fish and Wildlife Service (FWS), the federal agency responsible for implementing the MBTA, notes that many of the more than one thousand bird species protected under the MBTA are experiencing population declines due to increased threats. Climate change, feral cats, collisions with man-made structures, power lines, open oil pits and wind turbines all pose serious threats to birds.

Broad-tailed Hummingbird

What has FWS done to reduce bird mortality?

FWS remains committed to carrying out it century-old congressional mandate to conserve migratory birds. The agency’s implementation of MBTA takes on many forms. The most obvious is FWS’ law enforcement efforts against illegal hunting. However, sometimes bird fatalities are not intentional — such as bird electrocutions from power lines or accidental oil spills. Unlike some other laws that protect our nation’s wildlife, the MBTA does not yet have a permitting system for “incidental take.” Incidental take occurs when a protected species is unintentionally injured or killed from an otherwise legally conducted activity. For migratory birds, this can include a range of projects ranging from energy development to communication towers.

While there is no formal permitting system under the MBTA for facility construction, maintenance and operation, FWS has developed voluntary guidelines and best practice recommendations to conserve migratory birds and minimize bird mortality from these activities and the necessary structures that accompany them.

The MBTA drives and incentivizes industries to adhere to these best management practices in exchange for enforcement discretion. In practice, the FWS and the Department of Justice prosecute only particularly egregious violations of the Act. For example, FWS brought criminal charges under the MBTA against BP after the Deepwater Horizon oil spill killed over a million birds in the Gulf of Mexico.

Piping Plovers

What is the threat to MBTA?

Despite the current détente on enforcement, some developers still seek more certainty regarding criminal prosecution under the MBTA, given that it is a strict liability statute (i.e., there is no requirement of proof for prosecution that the take of bird was intentional). With the hope of escaping liability entirely, various industries are lobbying to weaken the MBTA through administrative or legislative changes to the law.

Congresswoman Liz Cheney (R-WY) recently added an amendment to the Strengthening the Economy with Critical Untapped Resources to Expand (SECURE) American Energy Act (H.R. 4239) that would remove incidental take from the purview of the MBTA. Enacting this legislation could eliminate the incentive for companies and individuals to comply with MBTA implementation guidelines, including simple adjustments and nominal investments such as spacing power lines so that birds can perch and avoid electrocution or installing bird deterrent devices around oil pits. In fact, even entities that wish to comply with the guidelines may have to forgo implementing certain measures if doing so would put them at a competitive disadvantage. This amendment goes way beyond ensuring “certainty” for developers — it completely eviscerates the law as we know it and allows corporations to escape liability for killing birds.

Snail Kite

While Congresswoman Cheney’s amendment appears to be a minor tweak to statutory language, the potential impacts on migratory birds are far reaching and significant. Just think — without MBTA coverage for incidental take, BP would not have been required to pay millions of dollars to restore critical bird habitat impacted in the Gulf Coast after the Deepwater Horizon oil spill disaster. Moreover, legislative and administrative attempts to exempt incidental take from the MBTA would reverse important progress achieved under the Act, discourage collaborative efforts to develop and implement policies and technologies to reduce bird mortality, and subvert our nation’s treaty obligation to migratory birds that we’ve honored for a century.

We can do better by the birds. Let’s keep the MBTA, and work together to establish a permitting solution that can provide added certainty to responsible developers without abandoning our international commitments and conservation legacy. Urge your representatives in Congress to oppose this legislation and all other proposals that would harm birds.

Sandhill Cranes, Bosque del Apache National Wildlife Refuge, NM

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