FROM FRIEND TO FOE: THE COMPLEX AND EVOLVING RELATIONSHIP OF THE FEDERAL GOVERNMENT AND THE MIGRATORY BIRDS IT IS BOUND TO PROTECT.

• Author: Scott, Jessica

1. INTRODUCTION 189 II. HISTORY OF THE MIGRATORY BIRD TREATIES AND ACT 190 A. History of the Original Treaty with the UK/Canada 191 B. Subsequent Migratory Bird Treaties 193 G Passage of the Migratory Bird Treaty Act 193 D. Significant Amendments to the Act. 196 III. CURRENT THREATS TO MIGRATORY BIRDS 197 A. Habitat Destruction 198 B. Declining Water Quality and Degraded Wetlands 199 C. Agricultural Practices 199 D. Climate Change 201 E. Energy Development 202 1. Oil Production 202 2. Wind Farms and Turbines 202 F. Invasive Alien Species 203 G. Overexploitation of Birds Through Hunting and Trafficking 203 H Political Threats 204 IV. THE STATUTE'S STRUCTURE, CONTENT, AND IMPLEMENTATION 205 A. MBTA Applicability to Federal Agencies 206 B. Standards for a "Take" Under the Act 210 1. Intent 210 2. Causation 213 3. Directness 214 C. Types of Federal Agency Activities That Courts Have Recognized as Resulting in Liability for "Take" 215 D. Likelihood of Take 216 V. THE DEPARTMENT OF INTERIOR'S NEW APPROACH TO INCIDENTAL TAKE 217 A. Interior's Historical Position 217 B. Interior's New Approach 220 1. Supporter's Perspective 221 2. Critics' Perspective 221 3. Former and Current Government Officials' Opposition 223 4. Conservation NGOs Challenge Interior's Memorandum 224 VI. CONCLUSION 226 I. INTRODUCTION

   One hundred years ago President Woodrow Wilson signed the Migratory Bird Treaty Act (1) (MBTA or Act) to combat the dramatic loss of migratory birds in the United States. (2) In the century since, the MBTA has proved an effective tool at protecting migratory birds, which constitute the vast majority of birds in the United States. (3) However, in that time new threats to birds have also arisen, including increased habitat loss, new pesticides and rodenticides, climate change, and the federal government itself. (4) These threats largely take the form of "incidental take," or bird deaths caused unintentionally, unlike illegal hunting or poaching. (5)

   The United States Department of Interior (DOI), which is responsible for implementing the MBTA, has often found itself at odds with industry and other branches of government over enforcement of the MBTA, and specifically over incidental takes or unintentional bird deaths. (6) Over the years DOI has come up with various approaches to try to ensure the continued effectiveness of the Act to meet these changing challenges, with varying effectiveness. (7) However, the Trump Administration has recently reversed course, with DOI declaring it will no longer enforce the law when it comes to unintentional bird deaths. (8) This marks the beginning of a new era in the complex relationship between the federal government and migratory birds and their advocates, in which DOI will no longer protect birds from some of the greatest threats they face, from private actors and the federal government alike. The federal government was once one of birds' greatest friends; it is now one of their greatest foes.

   Part II of this Article provides a retrospective of the MBTA from its origins at the beginning of the twentieth century to its evolution through the modern day. Part III considers some of the greatest current threats to birds, most of which involve incidental take. Part IV presents the statute's structure, content, and implementation, and then examines incidental take in more detail, particularly the interesting and complex issue of whether federal government incidental takes are covered by the Act. This Article analyzes the Department of Interior's new approach to incidental take in Part V. Finally, it concludes with recommendations to ensure that the MBTA survives and becomes even more effective over the next century.

2. HISTORY OF THE MIGRATORY BIRD TREATIES AND ACT

   By the end of the nineteenth century, it had become clear to Congress that wildlife did not exist in infinite supply and that human consumption of natural resources would have to be managed. (9) The federal government at this time went to great measures to try to protect migratory birds. In 1900, Congress enacted the Lacey Act, (10) a criminal statute, which is today generally considered the first piece of federal legislation to protect wildlife, including birds. (11) Iowa congressman John Lacey introduced the Act primarily to combat illegal poachers, who often evaded state-level prosecution by hunting and selling in different jurisdictions. (12) The Lacey Act also addressed the fact that states found themselves competing for resources, with each tempted "to secure its full share of edible game birds during the spring and fall migrations[,]" which "rendered harmonious and effective State supervision impossible." (13) Relying on the interstate commerce power, the Lacey Act constituted a comprehensive federal version of what states were trying to accomplish--preventing illegal poachers from evading state-level prosecution.

   Federal government support for the protection of migratory birds continued to build, with a bill proposed specifically to protect migratory birds in 1904 and in each of the next nine Congressional sessions. (14) In 1913, such a bill finally became law when Congress passed the Weeks-McLean Act (15) as an amendment to the Department of Agriculture Appropriation Act. (16) However, the Weeks-McLean Act was quickly and successfully challenged in two federal district courts as an unconstitutional exercise of State police power, (17) and the United States Supreme Court granted certiorari to consider the two decisions collectively. (18) Previous Supreme Court cases had treated migratory birds as ferae nature, and thus subject matter appropriate for state, rather than federal, regulation. (19) However, before the cases were heard, Secretary of State Robert Lansing invoked the Treaty power and entered into the 1916 "Convention Between the United States of America and the United Kingdom of Great Britain and Ireland for the Protection of Migratory Birds in the United States and Canada." (20)

   1. History of the Original Treaty with the UK/Canada

      The first mention on record of the possibility of using a treaty to achieve what Congress was struggling to constitutionally regulate otherwise was a statement by Senator Elihu Root in January 1913, suggesting that a treaty for the protection of migratory birds might give "the Government of the United States... constitutional authority to deal with this subject." (21) Upon receiving a report from the Senate Foreign Relations Committee supporting the concept, (22) the Senate passed a resolution requesting the President to enter into a treaty for that purpose just six months later. (23) Senator Root and Secretary Lansing are thus jointly credited for identifying the treaty power as a constitutional means of achieving the protective ends that Congress sought under the Weeks-McLean and Lacey Acts. (24) Secretary Lansing expressed his reasons for entering into the treaty in a letter to President Woodrow Wilson:

      Not very many years ago vast numbers of waterfowl and shorebirds nested within the limits of the United States... but the extension of agriculture, and particularly the draining on a large scale of swamps and meadows, together with improved firearms and a vast increase in the number of sportsmen, have so altered conditions that comparatively few migratory birds nest within our limits. (25) Congress, the Secretary of State, and President Wilson worked in concert to ensure the federal government could do its part to protect migratory birds. President Wilson initiated the Convention with Great Britain, which was acting for Canada prior to the country's self-governance. (26) The resulting treaty required both parties to "take, or propose to their respective appropriate law-making bodies, the necessary measures for insuring the execution of the present Convention," (27) but it did not impose any penalties for violating its terms. (28) The treaty consisted of nine articles: Article I establishes class of migratory birds, including game, non-game, and insectivorous; Article II declares closed seasons for certain migratory birds; Article III declares continuous closed seasons for certain species for the ten years following the treaty's going into effect; Article IV gives special protection to the wood duck and the eider duck; Article V prohibits taking the nests or eggs of migratory birds except for approved scientific or propagating purposes; Article VI prohibits shipping migratory birds, their nests or their eggs between states or provinces during closed seasons, except for approved purposes; Article VII allows the treaty parties to kill protected birds that become injurious to agriculture or other important interests; Article VIII affirms the parties' commitment to enacting legislation to execute the treaty domestically; and Article IX declared the treaty's effectiveness for fifteen years after ratification, with yearly renewal occurring automatically in the absence of objection from either party. (29) The treaty's silence regarding penalties suggested the parties would establish penalties by enacting domestic legislation, as the United States did in the MBTA. (30)

   2. Subsequent Migratory Bird Treaties

      Over the next approximately sixty years, the U.S. federal government continued to work towards strengthening bird protections. Its efforts included entering into another three international treaties aimed at protecting migratory birds, which vary in scope and in permissible takings, and all of which are currently implemented through the MBTA. (31) In 1936, the United States entered into the Convention between the United States and Mexico for the Protection of Migratory Birds and Game Mammals. (32) Subsequently the United States entered the Convention between the Government of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, which took effect in 1974. (33) Finally, in 1976...