In the late 1800s and early 1900s, the increasing popularity of women’s hats featuring beautiful feathers was directly responsible for the extinction of numerous species of birds as hunters killed hundreds of thousands to meet the demand. Early bird protection laws aimed at combatting the problem faced constitutional challenges. This fact, combined with the reality that the safety of migratory bird populations could not be guaranteed by a single country acting alone, led the government to turn to international treaties to promote conservation.
In 1916, the United States entered into such a treaty with Great Britain (on behalf of Canada) and enacted the Migratory Bird Treaty Act (MBTA), one of the country’s first wildlife conservation laws. Over the years, the USA has entered into similar agreements with Mexico, Russia and Japan, and all of the birds listed in these agreements are protected under the MBTA.
Today, the U.S. Fish and Wildlife Service (USFWS) has both the authority and the responsibility for enforcing the MBTA.
What Activities Are Covered Under the MBTA?
The law makes it illegal to take or kill any listed migratory bird species without a valid permit. “To take” is defined as: “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” There are 1,027 species of birds protected under the MBTA, 92 of which are listed as endangered or threatened.
Historically, enforcement of the MBTA concentrated on hunters, trappers and others who directly assaulted birds. But beginning in the 1970s, USFWS widened its net and began to prosecute industries that “incidentally” killed migratory birds, such as wind farms where tens of thousands of birds are killed each year flying into turbine blades Other industries whose regular operations – of power lines, oil pits, etc. -predictably kill birds became subject to enforcement actions.
The federal courts were split on how the government should treat bird deaths caused by such “incidental takings.” Whether the MBTA covers “incidental takings” is particularly important as violators of the MBTA can face very stiff penalties. The criminal sanctions for violators include fines up to $15,000 and up to 6 months imprisonment for each bird killed without a permit.
Dueling Administrations and Memorandums
0n January 10, 2017, the Department of the Interior (DOI) Solicitor’s Office issued Memorandum 37041 (M-37041), which interpreted the MBTA’s broad prohibition against taking and killing migratory birds to include incidental taking and killing.
M-37041 was quickly suspended pending review, and subsequently, in December 2017, the new Solicitor’s Office promulgated Memorandum 37050 (M-37050) that withdrew and replaced M-37041.
M-37050 found that, consistent with the text, history and purpose of the Act, businesses that accidentally kill nongame migratory birds during their operations are NOT in violation of the MBTA of 1918.
Following this dramatic reversal of policy, on May 16, 2018, the USFWS announced that it was no longer pursuing steps to evaluate potential environmental impacts of incidental taking of migratory birds under the MBTA. Presumably, if such actions weren’t considered takings, they wouldn’t need authorization.
Environmental advocates, including the National Audubon Society and Defenders of Wildlife, have filed suit to stop the Interior Secretary from limiting the application and enforcement of the MBTA. The complaint alleges that M-37050 unlawfully strips the agencies of authority to regulate incidental takings, in violation of the Act’s plain text, which clearly encompasses the killing of migratory birds “by any means or in any manner.”
In September 2018, Attorneys General from New York, California, Illinois, Maryland, Massachusetts, New Jersey, New Mexico and Oregon filed suit to challenge the Trump Administration’s move to eliminate longstanding protections of migratory birds under the MBTA. The AGs’ suit will be considered along with National Audubon Society v. Department of the Interior.
Coming Home to Roost
How the law will ultimately be interpreted or changed over time is unclear. As is common with environmental litigation, it is the interpretation and enforcement of the legislation that is as critical as the actual language of the legislation. Until more certainty is established, it is prudent to continue to follow the best management practices developed by USFWS and continue to apply for all applicable permits. These actions should reduce the risk of being prosecuted down the line for incidental takings. Transect can help your company identify MBTA habitat so that you can take the necessary steps to protect migratory birds and reduce potential future penalties.