American Birding Podcast



ACTION: Stand Up for the Migratory Bird Treaty Act

Our friend Ellen Paul returns, this time with practical advice on what birders can do in the face of an upcoming attempt to weaken the Migratory Bird Treaty Act.

Why is legislation pending that would weaken the protection of migratory birds? A provision of the SECURE American Energy Act (H.R. 4239), now pending in the House, would foreclose all liability for what is known as “incidental take.” Offered by Lisa Murkowski (R-AK), SEC. 207. CLARIFICATION REGARDING LIABILITY UNDER MIGRATORY BIRD TREATY ACT. Section 6 of the Migratory Bird Treaty Act (16 U.S.C. 707) is amended by adding at the end of the following: ‘‘(e) This Act shall not be construed to prohibit any activity proscribed by section 2 of this Act that is accidental or incidental to the presence or operation of an otherwise lawful activity.”

Only two years ago, the U.S. Fish and Wildlife Service (USFWS) attempted to develop a comprehensive policy pertaining to incidental take. That effort, which almost certainly would have resulted in litigation, was initiated far too late in the second term of the Obama administration to have had any hope of completion and, even if completed, would almost certainly have been reversed by the current administration.

Migratory passerines, like this Northern Parula, stand to lose if a long-standing incidental take rule is overturned. Photo: Nate Swick

Why is this even an issue, much less so contentious an issue? Doesn’t the MBTA prohibit the killing of migratory birds? Isn’t it a “strict liability” statute, meaning that the intent is irrelevant? Why would every industry get a free pass for killing hundreds or thousands of birds?




Welcome back. Here’s the deal.

Once upon a time, ladies wore hats with plumes taken from thousands of slaughtered waterbirds. And once upon a time, hunters blasted waterfowl and other game birds out of the sky without a thought about sending those populations the way of the Passenger Pigeon.

Along came Teddy Roosevelt, an avid hunter, who fretted that unregulated hunting might soon leave nothing to hunt. In 1887, Roosevelt organized the Boone and Crockett club, launching the first effort to promote science-based wildlife management. Along, too, came the fine ladies of Massachusetts to persuade ladies to forego feathered hats. Joined by the American Ornithologists’ Union (now the American Ornithological Society), a scientific organization that penned the first “model law” for states to protect wild birds, as well as influential industrialist Henry Ford and others, eventually persuaded Congress to enact the Migratory Bird Treaty Act.

But once upon that time, there were no wind turbines, no telecommunication towers, no glass-clad skyscrapers, no oil waste pits … all legal human activities that might result in the incidental deaths of migratory birds. Actually, Congress considered this problem during debate about the legislation, albeit in a more primitive form. One legislator raised the question, “What are you going to do in a case like this: A barefoot boy, as barefoot boys sometimes do, largely through inadvertence and without meaning anything wrong, happens to throw a stone at and strikes and injures a robin’s nest and breaks one of the eggs, whereupon he is hauled before a court for violation of a solemn treaty entered into between the United States of America and the Provinces of Canada.”

Congress ducked the question and here we are today, lacking a definitive decision about the applicability of the MBTA to incidental take. Recognizing the legal uncertainty, the USFWS has often opted to engage in discussion with industry and developers. For instance, the Avian Power Line Interaction Committee has worked with the agency for years to establish a toolbox of best practices to reduce or eliminate mortality resulting from collisions with power lines and electrocutions on transmission towers. Only when a company refuses to implement those practices has the USFWS elected to prosecute.

During the Obama administration, the USFWS attempted to develop a comprehensive policy pertaining to incidental take, despite the legal uncertainty. In May 2015, the agency published a notice of intent to publish a Programmatic Environmental Impact Statement. Many industries, particularly the energy sector, voiced concern to the Administration. Reportedly, the White House instructed the USFWS to cease its effort. In any case, it was initiated far too late in the second term to have had any hope of completion and, even if completed, would almost certainly have been reversed by the current administration or litigated – and that litigation could have resulted in a determination that the MBTA does not apply to incidental take. In recent decades, the USFWS has prosecuted a variety of incidental take cases. Three Circuit Courts of Appeal narrowly interpret MBTA “take” to apply only to migratory bird deaths resulting from affirmative activities directed against wildlife. Two other circuits interpret MBTA “take” more broadly to include many bird deaths inadvertently caused by industrial activities. This split may sets stage for resolution by the Supreme Court.

The potential for industry pushback in the form of attempts to persuade Congress to change the MBTA has always been a concern. Now, it is more than a potential. The oil and gas industries and others would have a complete and full pass under H.R. 4239. If the provision becomes law, it will eliminate any leverage the USFWS might have to regulate incidental take in future Administrations. In the near term, there would be no incentive for industries to use bird-safe glass, cover oil pits, take bird migration into account when siting energy production; the carnage will continue and grow.

Now is the time to contact your Representatives about this critical issue.