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What Birders Should Know – and do – about the Threat to the Migratory Bird Treaty Act

A quick summary: one of the most effective pieces of bird conservation legislation ever—the Migratory Bird Treaty Act—is under threat. Additionally, there is another challenge, specifically to Sage-Grouse conservation. Birders are urged to contact their elected representatives and make their support for bird conservation known. Information on how to do just that follows.

The Problem

By now, you’ve probably seen the news that the Migratory Bird Treaty Act (henceforth MBTA) is under threat due to its inclusion in an appropriations bill that seeks to defund enforcement of the law. As you might expect with just about anything that comes out of Washington, the mechanisms by which this can occur, and the means by which the legislature can do such a thing, are byzantine and frustratingly (and ironically) foreign to many Americans. Because of all that, it’s not clear through all of the legislative haze whether this is something about which birders should be very concerned, somewhat concerned, or not at concerned.

I hope that this post will provide some information and context as to what, precisely, is going on here, and ideally provide some avenues for birders to try to make their voice heard on this matter in a productive way. Bottom line: this is complex and a bit muddy, but it appears to be a serious enough threat that birders ought to make their voices heard, and now.

So let’s start at the beginning.

What is the Migratory Bird Treaty Act?

The MBTA was enacted in 1918 as a treaty between the United States and Canada to attempt to stop the commercial take of birds and, particularly, bird feathers. It basically states that it is illegal to pursue, hunt, kill, sell etc, birds or bird parts without a permit. Permitted exceptions include hunting of game birds, bird banding, and falconry, for instance. The law is enormous in its scope, protecting everything from accentors to yellowthroats to the robins and thrashers in your backyard.

Historically it’s been fairly uncontroversial, with little pushback in efforts to add species to the list of those protected. Enforcement of the law is the purview of the US Fish & Wildlife Service, and running afoul of MBTA can lead to fines of up to $2000 and jail time up to 2 years, accrued per bird.

The stunning Snowy Egret, and the threat posed to it from the millinary trade, was an impetus for the Migratory Bird Treaty Act. Photo by Ingrid Taylor via flickr

The stunning Snowy Egret, and the threat posed to it from the millinery trade, was an impetus for the Migratory Bird Treaty Act. Photo by Ingrid Taylar via flickr

What does MBTA look like in the real world?

It’s easy to write off the MBTA as that law that says you can’t keep feathers you find (I’m not going to turn you in, don’t worry), but it has been an enormously effective tool for conservation of habitat over its lifetime. This is because even the potential of harming birds can be a deterrent. The MBTA has often been used as a lever to induce industrial interests to be more conscientious about how their infrastructure development affects the land. In Alaska’s Beaufort Sea, for example, fossil fuel companies were forced to modify a pipeline to a small island they intended to use as a drilling platform because of the potential harm to Common Eiders and Long-tailed Ducks and the implied threat of litigation under the MBTA. After the Deepwater Horizon disaster in the Gulf of Mexico, FWS responded, in part, to document losses because that work was justified by the MBTA. Of late, FWS has been enforcing the MBTA against the telecommunications industry and the wind power industry to mitigate the impacts of their activities via “voluntary guidelines” as well.

There are countless examples in the US and Canada of industry taking short cuts at the expense of the environment, so having effective oversight to protect migratory birds is of paramount importance. Failure to enforce MBTA can be problematic in a great many ways.

So, what’s the deal with this rider?

Congressman Jeff Duncan (R, SC) offered an amendment to the House Appropriations bill that funds Commerce, Justice, and Related Agencies (H.R.2578) that reads as follows:

None of the funds made available by this Act may be used to prosecute or hold liable any person or corporation for a violation of section 2(a) of the Migratory Bird Treaty Act (16 U.S.C. 703(a).

So the amendment seeks to remove appropriations for enforcement of the MBTA. The MBTA would still be the law of the land, but the Department of Justice would no have funds available to pursue enforcement of the law. It goes without saying that a law without teeth is more or less worthless.

It’s important to note that this appropriations bill applies only for fiscal year 2016 ( October 2016 – 30 September 2017). So in theory the funding for enforcement of the law would be re-instated for the next fiscal year unless the language in this current bill is re-enacted.

Where is this appropriations bill now?

The bill passed in the House of Representatives fairly easily. It’s now scheduled to go to the Senate where where it will likely see more opposition. Senate Minority Leader Harry Reid (D, NV) has stated that he intends to block any appropriations bill that comes out of the House in which spending is locked at levels set by the sequester agreement of 2013. You may remember that the sequester agreement drastically cut federal spending via automatic cuts in a futile attempt to induce some sort of budget agreement that year. Further, President Obama has likewise vowed to veto any such spending bill. That would presumably include this appropriations bill, should it make it out of the Senate.

That’s good news, right?

In the short term, yes. Assuming that Reid and the President are not exaggerating their positions, it’s unlikely that this bill, as it stands, will survive the Senate intact. And it’s very unlikely that such a bill would be signed by the President. But compromise is inevitable, and that doesn’t mean that MBTA enforcement wouldn’t then be a token in a compromise that could see presidential approval. There are at least nine appropriation bills to fund various parts of the government currently under debate. It’s not hard to see a situation in which MBTA is compromised to see, say, the defense appropriation bill passed.

That’s why it’s important that defunding MBTA enforcement be taken off that table.

So how do we get the MBTA off the table?

The best way is to ensure that MBTA has supporters, including the birding community. The bill is already through the House, but there may be an opportunity to make your voice heard in the Senate. Birders should be urged to contact their Senator, particularly if that Senator sits on the Appropriations Committee for Commerce, Justice, Science, and Related Agencies. The full list of Senators and their contact info can be found here.

Remember when contacting elected representatives the hierarchy of being heard (from least to most likely) tends to go: email form letters < personal emails < handwritten letters < phone calls. Anything is better than nothing, however, and a short email reiterating your support for the MBTA would be appropriate and potentially helpful. Something like the following:

Dear Senator: Please vote against the appropriations bill for Commerce Justice and Related Agencies unless the rider that blocks enforcement of the Migratory Bird Treaty Act (Amdt 347) is removed from the bill. The MBTA is one of our most important wildlife protection laws and this rider would allow people to kill wild birds without any penalty whatsoever. Our wild bird populations are already under severe pressure and many are in severe decline. Please do not block the USFWS from enforcing this important law that protects our wild bird populations.

Make sure to include your full address and zip code so that the Senators will see that you are a constituent. At very least a congressional staffer would put a tally on our side.

UPDATE: American Bird Conservancy has also made this super easy. Feel free to use their prompt.

Will it work?

Who knows? The gears of legislation move slowly and often strangely, but it can’t hurt to show support to one of the first, and most influential, pieces of environmental legislation in US history.

And a new threat…

And, if the MBTA threat weren’t enough, now comes a serious challenge to already-imperiled Greater Sage-Grouse in the form of the National Defense Bill, which would suspend Endangered Species Act protections for that species and the critically endangered Lesser Prairie-Chicken. Click here to read more, sign a petition created by the American Bird Conservancy, and consider mentioning this issue in any communication you have with your Representative, as well.

Edit to add: There’s more as well. Of equal concern is another bill pending in the House – H.R.493 – also sponsored by Duncan, and especially Section 4: SEC. 4. MIGRATORY BIRD TREATY ACT which reads

Section 6(a) of the Migratory Bird Treaty Act (16 U.S.C. 707(a)) is amended (1) by striking `shall’ the first and second place it appears and inserting `shall with intent knowingly’; and (2) by adding at the end the following: `For the purposes of this subsection, `with intent knowingly’ does not include any taking, killing, or other harm to any migratory bird that is accidental or incidental to the presence or operation of an otherwise lawful activity.’.

This one is particularly insidious in that it is not applied simply to the upcoming fiscal year, but seeks to permanently change the MBTA by removing the potential liability for incidental take. Without that no industry would ever have to worry about killing any birds ever. It’s moving slowly, but certainly something to keep an eye on as well.

Thanks for your help.

This post has been edited from the original for clarification.

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Nate Swick

Nate Swick

Editor, Social Media Manager at American Birding Association
Nate Swick is the editor of the American Birding Association Blog, social media manager for the ABA, and the host of the American Birding Podcast. He lives in Greensboro, North Carolina, with his wife, Danielle, and two young children. He is the author of Birding for the Curious and The ABA Field Guide to Birds of the Carolinas.
Nate Swick

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  • Cara Joos

    I just sent a message to both of my senators via their webpages. It took about 2 min. I also plan to call them both tomorrow with my view on both the rider and the new bill. Do it people! This is important!

  • enonomore

    What possible business does Duncan have concerning himself with birds and their protection? He’s just trying to open up the flood gates for his business friends to tread all over important habitat. Pathetic.

    • Nancy A. Speed

      If you choose to participate in this discussion, “enonomore,” please be so kind to develop a brain before putting your left foot in… I’ve just finished reading all of Mr. Swick’s blog. It is an insightful reading which I found to be informative, and helpful. As an elder citizen in hopes of leaving a legacy to children and grandchildren, this is a point from which I can go forward in caring for birds. I am a licensed wild bird rehabilitator; with my husband, we have cared for generations of various birds who have been visitors to our land. This is our small part to giving back to the birds who have become friends. To continue with our kinship toward these spirits, it would be my pleasure to aid the migratory
      birds as they pass through. Hopefully, the persons who represent our state will be out due to illness……for a prolonged period of time!

      • cestma

        Nancy, did you perhaps think enonomore was talking about the author of this article?

    • FedUpWithTheFeds

      Because the USFWS has been overzealous, and quite stupid, in its enforcement of the MBTA. It has gone so far as to arrest and fine a boy who found certain bird feathers in his back yard, took them to school for show & tell, was turned in for violating the MBTA, and his family has to pay $10K. And this is NOT an isolated instance. Once upon a time, people including judges, understood a law’s intent and behaved accordingly. With zero tolerance policies, common sense has gone out the window, and zealous environmentalists have used the law, and its consequences, to pull stupid stunts.

      A Zoologist with a Master’s Degree from an accredited, American University and Wildlife Conservationist for over 20 years.

      • Do you have evidence of this $10,000 fine? Because I’d like to see it.

        I just spent the last half-hour googling for anything similar to the incident you cite, but there’s nothing there. Even people who actively shoot protected birds rarely get the maximum fine after once they pass through the court system.

        I think you’re full of it. Please prove me wrong.

  • jiminmt

    Jim Greaves · Top Commenter · Self-employed Biological Consultant at Self
    It was the likes of Al Gore and some in the “birding community” who pushed for wind farms as an energy-producing alternative to petro-chemicals, the latter of which fuel their homes and cars as well as the rest of ours. I am not supporting the exemptions, but it is the height of hypocrisy to “blame” one group or party of people for the sins of those doing the finger-pointing. Any time a Democrat tells you they love wildlife, ask them if they’d mind having bears and wolves prowling their neighborhoods. The “wild” does not exist any longer, except in a few people’s minds. Urban crime comes to mind, as an example of what happens when people pack and stack into small corners of metro areas. Try considering that wind towers are a blight on the landscape, and are NOT cost-effective – yet it is the likes of Al Gore and George Soros – known Democrats – who are promoting them.

  • Amazed

    The real emergency here is that “None of the funds made available by this Act may be used to prosecute or hold liable any person or corporation for a [read ANY] violation of section 2(a) of the Migratory Bird Treaty Act (16 U.S.C. 703(a).”

    Duncan isn’t even being specific about non-enforcement for incidental take. Shocking.

    • FedUpWithTheFeds

      Why are you amazed? When was the last time you heard USFWS taking anyone to court for birds being fried over solar panels? Or birds of prey being killed by wind turbines? You haven’t. Duncan is more concerned about your average, every day American, who gets targeted by over-zealous environmentalists for feathers found on the ground.
      And, I bet you and those like you aren’t a bit shocked that this administration has chosen not to enforce American immigration laws. So many hypocrites today who go by their ‘feelings’ instead of common sense and hard, repeatable science.

      • Immigration laws are not relevant to the MBTA. I’m not sure why you brought them up.

        • FedUpWithTheFeds

          Because when people watch their government picking and choosing which laws (environmental, immigration, violent crimes, property, driving, etc.) to enforce based upon the popular political flavor of the month, respect for governmental authority erodes. When governments (or governmental agencies) show themselves to by hypocrites, people no longer respect them or believe what they say.

          • The government enforces the laws, then it is up to the judicial system to decide to what extent those laws are enforced. That’s how these things work.

            Stating the maximum penalty and then claiming that because not everyone is charged the maximum the laws are “flavors of the month” is not an argument.

        • FedUpWithTheFeds

          Again, I’ve tried to respond to this but apparently DISQUS has been taken over by the PC police and facts aren’t allowed that don’t follow the party line.

          • No, Disqus has not been taken over by the “PC police”.

          • FedUpWithTheFeds

            Looking at which of my comments and replies show up in the comment chain, and which comments and replies don’t appear, my statement is correct.

        • FedUpWithTheFeds

          As another example of which laws our fearless leaders (and the politically motivated judicial system) choose to have enforced and which laws they choose NOT to have enforced. It’s the same group of people in D.C. that create the political climate that determines which law of the day they like or don’t like.

  • FedUpWithTheFeds

    This article is extremely misleading and inaccurate. The law would prevent the use of tax money to take little boys to court & fine them $10K when they find a feather in their back yard and take it to school for show and tell. The law would prevent people like my friend who found feathers, didn’t kill any bird, and whose neighbor called USFWS. My friend was fined $10K for each feather in their possession. The law would prevent people who find skeletons, or any part of a bird covered by the MBTA, from being taken to court and fined. You people need to stop thinking with your ‘feelings’ and start using your brains.

    A Zoologist with a Master’s Degree from an accredited, American University and Wildlife Conservationist for over 20 years.

    • Do you have a link to an article about this $10,000 fine? I’d like some proof that this is an actual thing that happened.

      • FedUpWithTheFeds

        See my response to your other comment asking for proof.

  • melissa carroll

    Amazing how utilities have so much control over the legal process’s and 1 organization has to fight tooth and nail to get heard for 30 seconds. The MBTA is all we have to depend on in some instances against industry and utility taking over and closing all our public lands to solar and wind farms which somehow protects the habitat minus all the birds they murder. Too many are on the endangered species list for a reason. This bill says that list is BS and doesn’t really matter anyway. We kill the fish for our drinking water in California now kill the birds that feed off the now dead fish so our drinking water doesn’t appear going extinct here because that will cause mass hysteria so fish, birds have to go. We already killed off the bumblebees and honey bees in California. They cannot find any colonies of them and bumblebees have been gone for years to protect a butterfly so the flora is becoming sparser from lack of pollination by the bees. Amazing how arrogant humans have become believing we don’t need to compete with this form of nature by being fined for violations or penalized for killing whole species of nature. It will come back to haunt all California’s citizens in a very catastrophic massive way.

  • I am a blogger for over some time now and I am very grateful that there are a lot of free blogging sites that we could utilize. It helped me through being a freelancer. Of course, what I know about these blogging sites, could not be all that is, you know, and I am really happy to have read this posts as nothing is more helpful when someone took the liberty of summarizing the information that you need in one page. Thanks for this one buddy, I might sort these out and choose another site to start on with my new blog.

  • RandPaul2020

    Real bird lovers would want the MBTA repealed and replaced with something that isn’t completely and utterly pants on head retarded.

    There is literally no excuse as to why it should be so hard to legally own mourning doves when you can go out and shoot them in droves every year.
    Don’t feed me that ‘but but iz wild berd REEEE’ crap, they’re better pets than those awful african ringnecks.

    Likewise it’s retarded that saving a bird is a federal offense. Although in that case it should remain a pet if it became tame to avoid spreading disease or death due to tameness.

    The MBTA was INTENDED to stop poaching, but in practice it doesn’t really do anything useful.

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