Migratory Bird Treaty Act: 100 Years of Federal Protection

2018 marks the 100th year of the Migratory Bird Treaty Act (Act); one of the most influential laws in history that is critically important for protecting the variety of songbirds and raptors that we enjoy in North America. The Act prohibits take (killing), possession, import, export, transport, sale, 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 by the US Fish and Wildlife Service. What this means, is that no one can lawfully kill (intentionally or accidentally), or even reach down and collect a shed feather or take an abandoned nest from a non-game, migratory bird species.

Songbird species like cardinals, finches, juncos, and warblers typically come to mind as protected under the Act, but the Act actually protects about 1,000 species.

The Act came to be in response to the popularity of colorful bird feathers adorning hats and clothing dating back to the 1800s. The feather trade was tremendous and unregulated, and at the end of the century, several waterfowl species were hunted into extinction. Soon to follow were species like the passenger pigeon (photo below by James St. John), which was once the most abundant bird in North America, and possibly the world, with migratory flocks consisting of possibly billions of birds.

Ectopistes_migratorius_(passenger_pigeon) by James St John

The first legislation protecting migratory birds, the Lacey Act, was passed in 1900, and still stands today. The Lacey Act prohibits the sale of poached game across state boundaries. The Weeks-McLean Migratory Bird Act was passed in 1913 protecting migratory birds from being hunted during their spring migration; however, this act was soon ruled unconstitutional. In 1916, The United States entered into a treaty with Great Britain in which the two countries agreed to stop all hunting of insectivorous birds and to establish specific hunting seasons for game birds. Then in 1918, the Migratory Bird Treaty Act was passed as a means to implement the treaty with Great Britain.

The next major milestones following the creation of the Act came in 1970 when US courts began prosecuting oil, timber, mining, and utility companies for “take”. Though not directly targeting wildlife, these industries incidentally cause millions of bird deaths (“incidental take”) each year that could have been avoided with simple infrastructure modifications, according to the US Department of Justice (Audubon Society). Then, in 2001, President Clinton ordered all relevant federal agencies to consider migratory bird conservation as part of their regular decision making.

As one of the oldest federal wildlife regulations, the Act has saved millions, if not billions of birds, according the Audubon Society. One of the most obvious successes is the snowy egret (photo below by Frank Schulenburg), which was hunted to near extinction, but has rebounded splendidly. Over time, however, the Act has been tweaked here and there. In its final term, the Obama administration issued a legal opinion stating that the Act applied to the incidental killing of birds. Incidental take includes scenarios such as birds striking power lines or wind turbines and falling into open oil storage containers, but on a more literal note, a person unintentionally hitting a bird with a car. However, the Trump Administration has suspended that opinion, according to NPR.

snowy egret by Frank Schulenburg

So, what does this mean? It means that industry may no longer be held liable for the accidental death of a bird due to energy extraction such as timber harvest, or mountaintop removal mining. This also means it is no longer a crime to accidentally kill a bird while driving to work. While incidental take is nearly impossible to avoid or completely enforce, there are potential consequences to repealing industrial liability.

The Audubon Society cites the US Fish and Wildlife Services estimates of power lines killing up to 175 million birds a year, communications towers rack up to 50 million kills, and uncovered oil waste pits account for up to another 500,000 to 1 million. Data on wind turbines are harder to come by, but current estimates hover at about 300,000 bird fatalities a year. It is reasonable that the Trump Administration finds incidental take to be government overreach, but without potential repercussions for industry-related migratory bird deaths, entities may be less likely to implement costly best management practices that could reduce incidental take resulting from daily operations.

Collin O’Mara, president of the National Wildlife Federation, was cited saying the Obama Administration interpretation of the Act was too sweeping, while the Trump Administration interpretation is far too narrow. Although the future of the Act and its application is uncertain regarding incidental take, the Act has survived a passel of presidential administrations. Barring the abolishment of the Act entirely, the basis of the act, prohibiting intentional take, remains intact and is certain to provide continued protection for migratory birds.

For more information, keep an eye out on the US Fish and Wildlife Service and the Audubon Society websites.

US Fish and Wildlife Service

Audubon Society

Energy Development Act Meets Habitat Conservation (Maybe)

I am a fish and wildlife biologist. I get my kicks (and earn a living) assessing environmental impacts on, and managing and restoring fish and wildlife habitat. I track tightly within my lane of technical, scientific expertise, and typically leave the politics to folks with a desire to argue and decipher that sort of thing. However, in 2017, a bill was introduced that the Theodore Roosevelt Conservation Partnership (TRCP) brought to my attention.

The Public Land Renewable Energy Development Act (HR 825) is a bill that establishes two main authorities; 1) continued authorization of the Geothermal Steam Act of 1970; and 2) the authority of the subject act.

HR 825 sounds dangerous, because it is. While “renewable energy” typically includes sources such as timber, hydro, solar, wind, and geothermal power, developing energy-harnessing opportunities on public resources has potential impacts to public use and fish and wildlife. It is prudent to point out that Section 4 of HR 825 includes a clause stating that potential development areas identified by the Secretary of the Interior must be coordinated with appropriate State, Tribal, and local governments to “…avoid or minimize conflict with habitat for animals and plants, recreation, and other uses…”

I don’t intend to hang up on possible impacts here, but I want to draw attention the benefits of the bill. Section 7 of HR 825 (Disposition of Revenues) is aimed directly at habitat conservation. A Treasury fund for this Act will be established to deposit any fees or revenues from energy production that may be used for “restoring and protecting…fish and wildlife habitat for affected species; fish and wildlife corridors for affected species; and water resources in areas affected…” (Section 7(c)(2)(a)). My interpretation: In other words, revenue from energy production is authorized to be used for impact mitigation.

Section 7(c)(3) states that “The Secretary [of the Interior] may enter into cooperative agreements (a flexible, federal government work agreement) with State and Tribal agencies, nonprofit organizations, and other appropriate entities to carry out the activities described in [Section 7(c)(2)].”

So, what does this all mean? Well, as you can glean from my synopsis, HR 825 is a renewable energy development bill that makes my hackles prickle. Every bill aiming to develop public lands has the potential to harm precious public natural resources, either directly or indirectly. The federal government is mandated to follow the National Environmental Policy Act to identify impacts and evaluate alternatives for all federal actions, including developing energy sources or issuing permits for such activities, but impacts generally occur to some degree.

On the flip-side, the bill proactively authorizes the Secretary of the Interior to use allocated revenue to mitigate any impacts efficiently and effectively through cooperation with States, Tribes, and nonprofit organization. As far as public land energy development goes, this is a good deal. The TRCP blog post by Julia Peebles couches HR 825 as a “rare win-win scenario for fish and wildlife” and I trust her more politically savvy perspective. You can find that blog post at TRCP.org.

If you have not already, I encourage you to venture over to the TRCP and read their blogs to see what the organization is about. It’s a great resource for keeping tabs on Capitol Hill and our precious public resources.

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