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What is the Future of the  Migratory Bird Treaty Act?

#birdyear – 100th Anniversary
of the Migratory Bird Treaty

This year marks the 100th anniversary of the Convention Between the United States and Great Britain (representing Canada) for the Protection of Migratory Birds, known as the Migratory Bird Treaty. The U.S. Fish and Wildlife Service (USFWS) is dubbing this year, #birdyear, and is promoting education and actions to encourage migratory bird conservation.

The Migratory Bird Treaty, signed August 16, 1916, was a landmark agreement to protect birds that spend time in both countries by establishing hunting seasons. The treaty established the foundation for wildlife management at a national level and became the basis for the Migratory Bird Treaty Act (MBTA), which is the federal legislation implementing the treaty.
Linda Leeman
Principal / Natural Resources
916.930.3190 / vCard

Migratory Bird Treaty Act – Looking Back

Enacted in 1918, MBTA represents one of our nation’s first wildlife protection laws. Aimed at curbing unregulated hunting, poaching, and egg and feather collecting, MBTA makes it a crime to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to federal regulations.

MBTA essentially protects all native species of birds and USFWS has statutory authority and responsibility for enforcing MBTA.

In the 1970s, federal prosecutors began charging not just hunters who violated the MBTA, but also oil and gas, timber, mining, chemical, and electricity companies. According the U.S. Department of Justice (DOJ), these industries incidentally cause millions of bird deaths each year, although their activities are not directed at wildlife. USFWS tries to work with industries to reduce impacts on migratory birds, but if they fail to implement best management practices, USFWS has the discretion to recommend prosecution to DOJ.

Can Incidental Take of Native Birds Be Authorized?

This broad interpretation of take, which includes take incidental to an otherwise lawful activity, has generated considerable debate. Indeed, federal courts have disagreed about whether “intent” should be considered in determining the criminal culpability under MBTA. The variety of decisions by district and appellate courts may be setting the stage for future resolution by the Supreme Court.

Some courts have interpreted take broadly to include bird deaths inadvertently caused by industrial activities. For example, see plea agreements from 2013 and 2014 for two wind energy projects in Wyoming. Although this interpretation seems like it could lead to MBTA violations for every day activities, such as striking a bird with a car, there is some basis in the statute, which refers to killing “by any means or in any manner,” and the inclusion of misdemeanor penalties for takes that are not “knowing.” (16 U.S.C. 703, 707)

In contrast, the narrow interpretation of take, which includes only actions that are directed against migratory birds, received a major boost recently in United States v. CITGO Petroleum Corp. There, the Fifth Circuit reversed a criminal conviction for migratory bird deaths when birds flew into oil production-related tanks. The CITGO opinion was based on multiple grounds:

[W]e agree with the Eighth and Ninth circuits that a “taking” is limited to deliberate acts done directly and intentionally to migratory birds. Our conclusion is based on the statute’s text, its common law origin, a comparison with other relevant statutes, and rejection of the argument that strict liability can change the nature of the necessary illegal act.

Migratory Bird Treaty Act –
Looking Forward…Incidental Take Permit?

As a possible response to the lack of clarity about the intent of an activity, USFWS is proposing to develop an MBTA incidental take permit process. They are in the scoping process to address various approaches to regulating incidental take of migratory birds and to establish appropriate standards to ensure that incidental take of migratory birds is appropriately mitigated. USFWS’ proposal indicates movement away from reliance on prosecutorial discretion and informal arrangements to reduce unintended migratory bird deaths, and towards regulatory programs to permit certain incidental takes.  USFWS anticipates releasing a draft programmatic environmental impact statement for public review later this year.

Given the legal uncertainty about how MBTA applies to otherwise lawful activities, especially in the oil, gas, and renewable energy sectors, developing a permitting program is not going to be an easy endeavor. It will likely take several years and may be challenged in the courts. The question remains whether MBTA is robust enough to be applied to modern conservation objectives.  Until then, best practices involve avoiding and/or minimizing the risk of take to the extent feasible, incorporating reasonable mitigation for unavoidable take, and consulting with USFWS when substantial risk of take could occur to address whether prosecutorial discretion may be an issue.

If you have questions about MBTA or other natural resource issues, please feel free to contact Ascent Principal and Natural Resources Practice Leader, Linda Leeman, at 916.930.3190.
Ascent Environmental is a dynamic environmental, natural resources, and planning consultancy with offices in Sacramento, Lake Tahoe, Bay Area, and San Diego. We offer our extensive CEQA and NEPA, urban design and planning, climate adaptation and GHG reduction planning, and biological sciences experience with the goal of providing personal service and high-quality results to our clients on their most important projects. We are certified as a small business and women-owned business enterprise.

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