CHAPTER 11 MIGRATORY BIRD TREATY ACT: WHERE ARE WE NOW?
| Jurisdiction | United States |
MIGRATORY BIRD TREATY ACT: WHERE ARE WE NOW?
Associate
Kaplan, Kirsch & Rockwell
Denver, CO
Raya B. Treiser
Counsel
WilmerHale
Washington, D.C.
Camila Gonzalez
J.D. Candidate, 2020
University of California-Berkeley School of Law
San Francisco, CA
[Page 11-1]
SARAH JUDKINS is an associate at Kaplan, Kirsch & Rockwell in Denver, Colorado. Her practice focuses on environmental, energy, and natural resources issues.
RAYA B. TREISER, Counsel, WilmerHale, Washington, D.C.
I. Introduction
The Migratory Bird Treaty Act (MBTA) is a statute of very broad applicability, covering some 1,026 bird species.1 The MBTA prohibits the take2 of migratory birds, but there is significant debate about whether this prohibition applies only to intentional takes, or also to takes incidental to an otherwise lawful activity. This uncertainty creates a challenging environment for regulators and the regulated community alike.
This article explores the current state of MBTA enforcement and recent shifts in enforcement policy. Section II provides an overview of the Act's history and context, statutory framework, and legislative history. Section III reviews the Circuit Court split regarding incidental take liability, and the recent change in the Department of the Interior's interpretation of the law. Section IV evaluates two policy alternatives for reducing uncertainty about potential MBTA liability for incidental takes: (1) an incidental take permit program similar to that under the Endangered Species Act (ESA) or the Bald and Golden Eagle Protection Act (BGEPA); and (2) congressional amendment to clarity the scope of the MBTA.
II. History and Context
The MBTA was enacted in 1918 to address population decline due to the use of migratory birds for commercial purposes. During the late 19th and early 20th centuries, a lack of regulation, coupled with commercial demand, led to over-hunting and population decline for migratory bird species in the United States3 Many migratory bird populations experienced significant decline during this period.4
The loss of migratory bird populations in the late 19th and early 20th centuries led to several actions at the federal level to protect migratory birds and other wildlife. In 1900, Congress passed the Lacey Act, the first federal wildlife protection law.5 Under the Lacey Act, it was illegal to sell poached game across state lines,6 but the statute was ultimately ineffective at stemming over-hunting of wildlife.7 While the Lacey Act added regulation to a previously unregulated market, it left gaps in protection for migratory birds, which spurred Congress to explore other methods to address migratory bird population decline.8
[Page 11-2]
To fill the regulatory gaps left by the Lacey Act, Congress passed the Weeks-McLean Migratory Bird Act in 1913. The Weeks-McLean Act made it illegal to hunt migratory birds and ship them across state lines, unless permitted by regulation and gave the federal government custody over migratory birds.9 The Act also gave the U.S. Department of Agriculture authority to regulate hunting seasons to protect birds and their habitat.10 Violation of the Weeks-McLean Act was a misdemeanor.11 Although the Weeks-McLean Act provided more robust protections than the Lacey Act, it was overturned in United States v. McCullagh, in which the court held the Weeks-McLean Act violated the Tenth Amendment to the United States Constitution and invalidated the Act.12
To achieve the goal of bird conservation in a constitutionally permissible manner, Congress enacted the MBTA in 1918 pursuant to its treaty-making authority. The MBTA implemented a 1916 treaty between the United States and Canada to protect birds that migrate between the two countries, which included agreements to stop hunting insectivorous birds and to designate hunting seasons.13 Like other conservation statutes, the MBTA was challenged on constitutional grounds, but in Missouri v. Holland, the Supreme Court upheld the MBTA as a proper exercise of Congress' treaty-making power.14 Since its enactment in 1918, the scope of the MBTA's protections have expanded as the United States has entered protective treaties with additional countries.15
III. Statutory Framework
The MBTA provides protections for native migratory birds and makes it unlawful to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, deliver 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 this convention."16 Currently, the MBTA protects 1,026 species of migratory birds including egrets, cardinals, finches, and flamingos.17 The list of protected birds is updated periodically by the Secretary of the Interior.18
The MBTA prohibits the "take" of any protected migratory bird species but does not define the term. Fish and Wildlife Service (FWS) regulations define "take" as "to pursue, hunt, shoot, wound, kill, trap, capture or collect," or any attempt to do so.19 The meaning of "take"
[Page 11-3]
under the MBTA is one of the statute's most contested provisions.20 Although it is uncontested that the Act prohibits intentional take of protected migratory birds, there is disagreement as to whether the MBTA penalizes otherwise lawful conduct that incidentally results in the take of a protected bird, known as incidental take. FWS began enforcing against incidental take in the 1970s.21 The United States Department of Justice (DOJ) has also prosecuted incidental take of protected bird species and developed guidelines for bringing actions for incidental take under the MBTA.22 As discussed later in this article, the Circuit Courts are split on whether the MBTA prohibits incidental takes.
The uncertainty with respect to MBTA liability is particularly concerning because the MBTA is a criminal statute and does not provide for civil liability.23 As a result, incidental take, if covered by the Act, is a misdemeanor offense. Violation of any provision of the MBTA is a misdemeanor, with a maximum penalty of $15,000 or six months in prison, or both.24 A heightened mens rea is required for felony violations of the MBTA, which penalizes knowing take of protected migratory birds with intent to sell and can result in a maximum fine of $250,000 for an individual and $500,000 for an organization.25
IV. Legislative History and Statutory Interpretation
The MBTA's text is silent regarding liability for incidental take. The MBTA's legislative history also does not provide a definitive answer on whether the statute covers incidental takes of protected birds. Both proponents and opponents of extending MBTA liability to incidental take find support for their position in the legislative history.
Portions of the legislative history support the proposition that the MBTA only applies to intentional takes. Statements by members on the House and Senate floors at the time of enactment indicated their intent to regulate only recreational and commercial hunting, supporting the interpretation that the statute should not penalize incidental takes.26 Furthermore, a key purpose of the MBTA was to insure a stable supply of game birds for hunting, indicating an intent to regulate only hunting and intentional acts.27
Other portions of the MBTA's legislative history support the interpretation that the Act includes liability for incidental take. For example, committee reports and floor debates identify the MBTA's goal as the "effective protection of useful migratory birds." Those who construe the
[Page 11-4]
Act to prohibit incidental take view this goal as supporting that position as preventing incidental take is the only way to fully protect migratory birds.28 One example of this argument is contained in a 1918 letter from Secretary of State Robert Lansing to President Woodrow Wilson regarding the Act which mentions activities like draining of largescale swamps and meadows that impact migratory bird nesting, indicating a broad regulatory intent.29 Furthermore, members who spoke in opposition to the MBTA criticized it for being "too far reaching" and not limited to hunting, indicating that even opponents at the time believed the statute regulated more than just hunting and intentional acts.30 Finally, while the MBTA protects game birds, it also protects insectivorous birds and other birds that are not commercially desirable, indicating an intent to prohibit more than just hunting and intentional take.31
Subsequent Legislative Action and the MBTA's Changing Purposes
Subsequent legislative actions modifying and amending the MBTA provide insight into the Act's changing purposes.32 For example, in 1936, the United States entered a treaty with Mexico, which gave the President authority to expand the list of birds protected under the MBTA, a power delegated to the Secretary of the Interior.33 And in 1973 and 1976, the United States entered treaties with Japan and Russia, which included a broad commitment to protecting migratory birds and a prohibition on take of migratory birds and eggs.34 Proponents cite this broad protective commitment as demonstrating the Act's application to incidental takes. The treaty and subsequent amendments included exceptions for hunting during open seasons and "for science, education, propagative, or other specified purposes"; such enumerated exceptions to the general prohibition of migratory bird take, some argue, signal an intent to regulate incidental takings.35
In 1995, U.S. and Canada revised their initial MBTA treaty.36 The revised treaty included a commitment to comprehensive conservation, including via "monitoring, regulation, enforcement, and compliance" and allows take for science, education, and in...
To continue reading
Request your trial