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The Migratory Bird Treaty Act Explained

migratory-bird-treaty-act_final_page_1The Migratory Bird Treaty Act of 1918 (MBTA) is a U.S. federal law intended to protect migratory birds in the United States. The MBTA makes it illegal for anyone 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.” Currently, there are over 1,000 species protected by the MBTA, including birds that migrate between the United States and Canada, Mexico, Japan and Russia.

History of the MBTA

The MBTA was the culmination of two previous acts set in place to protect wildlife and migratory birds in particular. In 1900, Congress passed the Lacey Act, which banned the illegal hunting and trafficking of wildlife in the United States. The Lacey Act later gave way to the Weeks-Mclean Act in 1913, a law that made shooting migratory birds illegal and gave the Secretary of Agriculture the authority to regulate hunting seasons nationally. These two acts contributed to the formation of the MBTA in 1918, which has remained relatively intact for almost one hundred years. The Endangered Species Act, passed in 1973, further broadened the scope of the MBTA, specifically in regards to the “take” and “kill” clauses of the Act, which made “harming” and “harassing” ESA-protected birds illegal. In 1982, amendments to the Endangered Species Act also made incidental takes – unintentional harm or death — of ESA-protected species illegal, even if a lawful activity was taking place. Recently, a court split regarding the MBTA has brought into question the scope and applicability of the law regarding incidental takings. Recent announcements from the Trump administration have brought clarity to the law and reasserted its purpose of applying only to affirmative actions that have as their purpose the taking or killing of migratory bird species.

The following highlights key activities related to the MBTA, including efforts to reform the Act in recent years.

  • 1918 – The MBTA is passed by Congress and signed into law.
  • 1940 – The Bald Eagle Protection Act is passed to protect and increase the population of the national bird.
  • 1973 – The MBTA is amended to protect more native birds, including non-migratory birds.
  • 2002 – The U.S. Navy is sued by Earthjustice for not complying with the MBTA and for taking birds during training readiness exercises. Congress responds by passing H.R. 4546, which amends the MBTA and allows for the Department of Defense to make unintentional takings during these types of exercise.
  • 2014 – The Department of Justice orders a wind farm operator in Wyoming to pay $1 million in fines for incidental takings of Golden Eagles.
  • May 2015 – FWS announces a Notice of Intent to prepare a programmatic environmental impact statement (PEIS) to evaluate the potential environmental impacts of a proposal to authorize incidental take of migratory birds under the Migratory Bird Treaty Act.
  • July 2015 – IPAA and API submit comments on the Service’s Notice of Intent, expressing concern with the approaches outlined in the notice.
  • January 2017 – Department of the Interior’s Office of the Solicitor issues a memorandum arguing incidental take is prohibited under the MBTA.
  • December 2017 – Department of the Interior Solicitor’s Opinion on the MBTA clarifies the intent of the law to its original purpose of protecting avian species.
  • April 2018 – A memorandum to U.S. Fish and Wildlife Service staff further clarifies the Department’s policies and programs as it relates to MBTA enforcement.

Historical Split on Incidental Take Clarified by Administration

Over recent years, MBTA has been in the spotlight as disputes of incidental or intentional take of threatened or protected bird species are carried out in U.S. courts. IPAA supports the conservation of migratory birds, and expressed concern that the previous approach described in the Fish and Wildlife Service’s May 2015 proposal and a January 2017 opinion from the Office of the Solicitor singled out the U.S. oil and natural gas industry over a more comprehensive assessment of the threats that avian species face. A court split around the theory of unintentional also posed challenges to how industry is treated under the law. In September 2015, the U.S. Fifth Circuit Court of Appeals rejected the theory of unintentional take under the 1918 Migratory Bird Treaty Act, reversing a Citgo Petroleum Corporation’s conviction related to proposed violations of the Clean Air Act and the Migratory Bird Treaty Act at a facility in Corpus Christi, Texas.

According to the Fifth Circuit panel, the scope of takings under the MBTA only prohibits intentional acts that directly kill migratory birds. The decision split the circuit courts on the issue of enforcement of MBTA in the oil and natural gas sector, placing the Fifth Circuit in agreement with the Eighth and Ninth Circuits, both of which have narrowed the definition of “takes” to hunting and poaching activities and have stated that “taking” is limited to deliberate, intentional acts to migratory birds. Meanwhile, the Second and Tenth Circuits “have read the MBTA broadly” and “hold that because the MBTA imposes strict liability, it must forbid acts that accidentally or indirectly kill birds.”

In an effort to clarify these opposing views, a Department of the Interior Solicitor’s Opinion was released in December 2017, providing much needed clarity on the legal role of the MBTA to support species protection, while limiting inappropriate legal impacts on otherwise lawful activities from an array of industries.

Modern Use of the MBTA

The legislative intent of the MBTA was to prohibit the illegal hunting of birds, yet expansion of the rule brought into question its role and applicability. The passive take approach considered by select courts would criminalize everyday activities such as the 599 million window strikes and 200 million car strikes that impact migratory birds each year. In fact, one of largest threats to migratory birds is feral cats, with the American Birds Conservancy estimating up to 3 billion birds killed by cats each year.

Thanks to recent actions from the Department of the Interior and the Fish and Wildlife Service to clarify the law, the MBTA can return to a commonsense approach that ensures the safety of avian species without the unnecessary criminalization of passive takes. There are many efforts underway to maintain the protection of migratory birds. In the oil and gas industry, for instance, avian protection often includes extensive planning, training, facility inspections, and engineering controls. Common engineering controls include covering or enclosing liquid containment systems and installing fencing, anti-perching devices, and anti-collision devices to limit the exposure of birds from potential operational hazards on site. These steps can ensure the protection of migratory birds while supporting businesses and the economy.