Guest Essay by Kip Hansen — 4 February 2020

The driver of the car pictured in the image here has committed a Federal Crime — a misdemeanor under the Migratory Bird Treaty Act of 1918 (MBTA) punishable by a fine of up to US$15,000 or imprisonment of not more than six months.  His crime?  He has violated the MBTA which makes it illegal to:

“pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry, or cause to be carried by any means whatever, receive for shipment, transportation or carriage, or export, at any time, or in any manner, any migratory bird, included in the terms of this Convention . . . for the protection of migratory birds . . . or any part, nest, or egg of any such bird.” (16 U.S.C. 703)”

Surely, you might think, I am kidding here.  But I am not.

“Solicitor’s Opinion M-37041 – Incidental Take Prohibited Under the Migratory Bird Treaty Act, issued January I 0 , 2017 (hereinafter “Opinion M-37041 “), which concluded that “the MBTA’ s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing .”

This opinion represented the standard practice of the United States Department of the Interior’s Fish and Wildlife Service (FWS) in the application and enforcement of the Migratory Bird Treaty Act.  A brief version of the history is given in this government document:  “M-37050 – The Migratory Bird Treaty Act Does Not Prohibit Incidental Take”.

The document linked expressly rescinds the opinion expressed in M-37041 and replaces it with the following:

“Interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a  host of otherwise  lawful and productive actions, threatening up to six  months  in jail and a  $15,000 penalty for each and every bird injured or killed. As Justice Marshall warned, “the value of a sword of Damocles is that it hangs-not that it drops. ” Indeed, the mere threat of prosecution inhibits otherwise lawful conduct.”

“For the reasons explained below, this Memorandum finds that, consistent with the text, hi story, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.”  [emphasis added — kh ]

Lucky for the driver in the featured image that the interpretation was changed.  The turkey is one of the 2,194 birds that are currently covered by the Migratory Bird Treaty Act.  Wait a minute, you might say, how is that possible?  How many bird species are there in the United States?  According to National Geographic there are “The United States is home to 1107 different species of birds, while Canada and Alaska host 686 and 521 species respectively.”  I’d add those together, but Canada and Alaska share many of the same species.   Some of the species covered by the MBTA are listed because they are protected in other countries that are party to the treaty.

What does this mean for you and I?  It seems that virtually every bird you  might see, or run into with your car, or have inadvertently fly into your plate glass window, or have killed by your pet dog or cat, is covered by the Migratory Bird Treaty Act — and up until February 2017, you committed at least a Federal misdemeanor by failing to prevent the collision, either with your car or your window or failed to prevent your cat or dog from killing a backyard bird.

On January 30th, the US Fish and Wildlife Service issued a statement that it was “proposing a rule that defines the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders. ….  This proposed rule clarifies that the scope of the MBTA only extends to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the act.”  In effect,  turning the memorandum “M-37050 – The Migratory Bird Treaty Act Does Not Prohibit Incidental Take” into a rule.  For the FWS’s viewpoint, also see here.

As expected, the media have leapt in with accusations of the current administration attempting to weaken environmental laws.  Lisa Friedman in the NY Times says:

“It’s a race against the clock,” Bob Dreher, senior vice president of conservation programs at Defenders of Wildlife, an environmental organization, said of the proposed regulation. Any legal guideline, like the one now governing bird-death enforcement, can be easily overturned; the 2017 opinion on incidental avian deaths reversed guidelines written by the Obama administration to enshrine the government’s ability to fine and prosecute those who accidentally kill migratory birds. Mr. Dreher noted that codifying the opinion into regulation, as the Trump administration is trying to do, would make it harder for a future president to issue a quick reversal.”

The Audubon Society says in: “Administration Doubles Down on Bird-Killer Policy” —

“The Trump Administration’s Bird Killer Department, formerly known as the Department of the Interior, just gets crueler and more craven every day,” said David Yarnold, president and CEO of Audubon (@david_yarnold).  “And today they are doubling down despite the fact that America did not elect this administration to kill birds.”

In another article, the National Audubon Society says:

”For the past half-century, the government’s position was that the law prohibited “incidental take,” or the inadvertent but often predictable killing of birds, usually through industrial activities. Though rarely used, that legal authority helped convince industries to adopt bird-saving practices and technologies. But in late 2017, Daniel Jorjani, the department’s top lawyer, issued a memorandum stating that the U.S. Fish and Wildlife Service (FWS)—the agency in charge of implementing the MBTA—would no longer enforce incidental take.”

Important Note:  Readers should not confuse the National Audubon Society with your  friendly neighborhood or regional Audubon group.  Local Audubon groups are people like you and I and they do good work at the local level.   It is David Yarnold, president and CEO of the National Audubon Society, that spouts off as quoted above sounding  every bit as crazy as your average Extinction Rebellion or Greenpeace mouthpiece.  In reality, the not-for-profit “charity” National Audubon has assets totaling nearly half a billion dollars and Yarnold receives an annual salary of US$ 617,905.

And there’s the rub — freely admitted by Audubon — the previous position of criminalizing accidental or incidental killing of birds (and remember, nearly every US bird is covered by the MBTA) was “rarely used” — and when it was used, it was selectively applied to the petroleum industry, the power industry, the cell phone industry, the mining industry, the construction industry and agricultural interests.   And that’s a real problem.  The threat of prosecution has been used as a cudgel to enforce the desires and agendas of various advocacy organizations such as Audubon.

Why is this bad?  As the law was previously interpreted, almost any death of almost any bird in the United States, or even just disturbance of almost any bird nesting site, or even picking up and keep a bird feather could have been prosecuted as a Federal Crime.   Want to replace a  bridge in your community?  Can’t do it if any birds are nesting under it….Federal crime.  Want to restore sand to your beaches?  If you fail to get a Federal permit allowing you to disturb the birds that habituate the beach — Federal crime.  Cut down a tree in your yard, causing a bird nest to fall?….Federal crime.

Oh, but you were safe from prosecution unless you were carefully selected — by whom?  Who knows?  If any of the aggressive environmental groups reported your offense to the FWS you could be pursued for prosecution.   Neighbors don’t like you?  They report you to the local chapter of the Environmental Defense Fund or National Audubon, who file a complaint with the FWS.

However, if David Yarnold, president and CEO of Audubon, accidentally kills a migratory bird with his car — or, heaven forbid, a migratory bird kills itself by flying into those big plate glass windows at Audubon’s Discovery Center (pictured below), then — well — it is just an unfortunate unavoidable accident.

Now, just to be clear, the Migratory Bird Treaty Act literally covers almost any bird you are likely to come across in the Unites States.  Don’t believe me, think of a bird you have seen in your yard and then check the list.   Sparrow? – on the list.  Crow?  – on the list.  Cowbird?  – on the list. Finch?  – on the list.  Turkey? – on the list.  Robin?  – on the list.   Your kid picked up a robin’s egg that fell out of the nest in your yard’s apple tree?  He is only now protected from prosecution by the change proposed  in the new FWS rule.

The Migratory Bird Treaty Act is not the same as the Endangered Species Act which protects endangered species.  For birds, this means just the 77 species of US birds on this list.  You will not find the Bald Eagle on that list — it is no longer endangered.  It is, along with the Golden Eagle, protected under another Federal law, the Bald and Golden Eagle Protection Act (as well as the MBTA). There are an additional 22 US birds on the Threatened list.  Those 101 bird species have special protections, as they probably should.

The Migratory Bird Treaty Act was expressly passed to prevent the then on-going wanton destruction of hundreds of thousands of birds, the destruction of which was made extremely profitable by two very popular fads of the late-1800s and early 1900s.  Bird egg collections for display in curio cabinets of Victorian homes, like the one shown here were very popular, both in the United States and in Europe.  Even more popular were ladies hats and this required a nearly endless supply of  feathers (and bizarrely, whole birds) to the millinery trade.  Like many of the problems we see with endangered species today, it was a fad that was endangering the birds in the 19^th century — the making of ladies hats like these:

Does the proposed new rule, which will codify the existing FWS’s current practice, mean,  as the Audubon society claims, that everyone is now free to kill all the birds they want to?  Of course not!   There are lots and lots of laws protecting wildlife, at both the Federal and the State level.

What it does mean is that advocacy organizations will no longer have the power to threaten individuals and industries with Federal prosecution over the inadvertent, incidental and accidental death of birds.

And that is a good thing.

Bottom Line:

 Birds, like all wildlife, are part of our common natural heritage and deserve our active protection from wanton destruction — whether at the hands of  commercial interests or through inattention and simple neglect.  Sensible clear laws  and rules for their protection are a right and proper use of governmental regulatory powers.

The United States Federal government is changing the interpretation of the MBTA to exclude criminal prosecution except in the case of “affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs.” And will enshrine this interpretation as a new rule.

That means that you and I are safe, for the time being,  from selective prosecution under the Migratory Bird Treaty Act, which covers nearly every bird species in the United States, for accidental, unintentional, inadvertent acts which could be construed as  “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess,… any migratory bird, … or any part [including feathers] , nest, or egg of any such bird.”  — including potentially malicious prosecution based on the accusations of over-zealous advocates.

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Author’s Comment:

I like birds.  I watch birds.  I have a dozen or more bird field books.  I feed birds in the winter.  I have sat in my car for hours watching a male pin-tailed whydah attempt to get air-borne from the ground despite his incredibly long tail — ready to intervene if any predators appeared — until  he eventually made it up to a telephone wire, where he was safe.

I have picked up colorful feathers in the woods.    And sadly have collided with birds on the highway.  I have picked up fallen bird eggs, and unable to find the nest from which they fell, taken them home to show to my curious children.  I have chased birds out of my vegetable garden to protect my crops.  None of these should ever have been Federal criminal offenses, yet they were, under previous administrations’ interpretation of the MBTA.     At least for now,  they are not.

I realize that not everyone will agree with my understanding of MBTA battle taking place in Washington, D.C..

I would love to read your thoughts in the comments.  Start with “Kip…” if speaking to me.

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