TAKING A PECK OUT OF PROTECTION: CHANGE IN INTERPRETATION OF THE MIGRATORY BIRD TREATY ACT SPELLS TROUBLE FOR BIRDS AFFECTED BY INDUSTRY.

• Author: Gaines, Spring

Table of Contents I. Introduction 133 II. The Origin of the Migratory Bird Treaty Act 135 III. Migratory Bird Treaty Act 136 IV. What is Take? 137 V. Known Types of Incidental Take in Admiralty and Aviation 139 A. Bird Strike 139 B. Communication Towers 143 C. Seabird Bycatch in Fisheries 145 D. Oil Spills 147 E. Wind Turbines 150 VI. Circuit Split Over Definition of Take 153 A. Second and Tenth Circuits 153 B. Eighth and Ninth Circuits 155 C. Fifth Circuit 157 VII. Redefinition of Take 158 VIII. Judicial and Administrative Battles 159 IX. Potential for Future Federal Framework 163 X. Conclusion 164 I. Introduction

Every year, on a small island along Louisiana's southern coast, visitors flock to one of the best places in the world to observe the Spring migration of songbirds, shorebirds, waders, and raptors. These birds rest on this island after a long flight across the Gulf of Mexico. (1) On this seven-mile stretch of land, one has the possibility to see every type of migrant land bird in eastern North America, along with several seabirds and shorebirds. Almost three hundred different species of migratory birds use this island as a notable rest stop in the Mississippi Flyway. (2,3) Birdwatching, or birding, has become a tremendous industry. In states across the U.S., small cities gear up and use their positions along migratory paths to their advantage during the spring and winter migrations. According to the U.S. Fish and Wildlife Service ("USFWS"), birders "spend $12 billion annually on travel, plus an additional $24 billion on equipment like binoculars, camping gear, and nest boxes. That money ripples through the economy and generates $82 billion in output, employs 671,000 people, and enriches state and federal governments by $10 billion." (4)

Still, birds do quite a bit more than attract tourism. Birds live on every land mass and in every ocean across the world. (5) They are natural pest control agents for farmers, orchardists, and vintners. They spread seeds in their journeys from north to south and back again. These seeds grow plants that provide us with food, medicine, and timber. Birds, along with bees, bugs, and butterflies, also pollinate plants. (6) Additionally, since Rachel Carson published her book Silent Spring that displayed the effects of DDT (7) on the natural world, scientists use bird behavior to signal the health of an ecosystem. (8) Birds are sensitive to changes in habitat and have been involved in studies that show the impacts of heavy metals, toxins, radioactivity, and climate change. (9)

For a century, the United States has enforced a law to protect migratory birds from hunters, poachers, and the effects of industry on their natural environments. However, a recent reinterpretation of this law has taken a significant peck out of these protections and may put millions of birds at risk annually. Before I can explain how we came to this point, however, we must travel back to the early 1900s when two brothers, by observing birds in flight, brought mankind one of the most prolific inventions in modern history.

2. The Origin of the Migratory Bird Treaty Act

   In 1903, south of Kitty Hawk, North Carolina, two brothers watched birds in flight. They noticed how birds angle their wings for purposes of balance and control. These two brothers used this observation to develop their own experiments, and on December 17th, Orville and Wilbur Wright made history as the first people to fly a "free, controlled flight of a power-driven, heavier than air plane." (10)

   While the Wright Brothers' invention took man to the skies, the number of birds in the sky declined. However, this population declination was not wholly attributable to the airplane. It was due in part to the fashion trends of the period. There was a demand for large quantities of bird feathers for hat decoration. (11) The demand for feathers was so high that it led to the extinction of some species and precipitous decline in others. (12) This decline in the bird population moved the United States government to enact its first federal laws to protect wildlife. (13)

   In 1900, Congress, using its authority under the Commerce Clause, passed the Lacey Act. (14) This Act's aim was to give states the power to prohibit the sale of game birds across state lines by imposing criminal sanctions. (15) Soon after, in 1913, Congress passed the Weeks-McLean Migratory Bird Act. (16) This Act banned the spring shooting of migratory game and insectivorous birds. (17) Like the Lacey Act, it aimed to stop the shipment of migratory birds across state lines. (18) Both Acts focused on regulating the hunting of protected birds to stop poachers from selling bird feathers for hat decoration. However, the Weeks-McLean Act gave enforcement authority to the federal government as opposed to the states. (19)

   Two years later, the United States and Great Britain (on behalf of Canada) signed a treaty in which both agreed to stop all hunting of insectivorous birds and to establish specific hunting seasons for game birds. (20) However, it was not until 1918, backed by this treaty, that Congress passed the Migratory Bird Treaty Act, a law that saved the lives of billions of birds. (21)

3. Migratory Bird Treaty Act

   The Migratory Bird Treaty Act ("MBTA") of 1918 makes it unlawful to take most bird species found in the United States without a permit. (22) Specifically, the Act makes it unlawful "to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, ...or export, any migratory bird,...or any part, nest, or egg thereof." (23) The MBTA also incorporates the Canadian Convention of 1916, the Mexican Convention of 1936, the Japanese Convention of 1972, and the Russian Convention of 1976 for the protection of these birds. (24) This protection encompasses not only adult birds but their young, eggs, and nests. (25) Additionally, the MBTA provides for the establishment of bird refuges and encourages the monitoring of bird populations. (26) These measures protect more than 1,000 migratory bird species. (27)

   The MBTA is a strict liability statute. Misdemeanor violations lead to a fine for up to 15,000 dollars and/or a jail sentence for up to six months. (28) In 1986, Congress amended the MBTA to include a mens rea element for felony violations. Here, the intent element for this violation would be when an individual intends to sell, offer to sell, or barter migratory birds. (29) Felony violations lead to a fine for up to 2,000 dollars and/or a jail sentence for up to two years. (30)

4. What is Take?

   When one looks at the language of the MBTA, activities such as kill, hunt, and possess are easily understood. However, the term "take" is not part of the common vernacular. The scope of the MBTA presents a broad interpretation of the word "take." Upon enactment, the MBTA construed "take" as deliberate action through hunting activity or the intent to kill for a purpose. The court took this view in Humane Society of the U.S. v. Glickman when the Department of Agriculture planned to deliberately round up and kill over 3,000 Canadian geese. (31) In defining the Department's actions, the court said that take meant "physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute's enactment in 1918." (32)

   On the other hand, this definition does not hold parties accountable in instances such as what occurred October 4, 1960 (33) when Eastern Air Lines Flight 375 struck a flock of European starlings during take-off. (34) All four engines failed, and the aircraft crashed into Boston harbor. (35) It only took about twenty seconds, but sixty-two people died, making it the worst bird strike in U.S. history." (36) Through a strict locality test, the Third Circuit established that admiralty jurisdiction took precedent in tort claims by libellants. (37) The court reasoned, although the crash was within the state's boundaries, it was upon navigable waters. (38) However, though the cause of the crash was deemed a bird strike, there was no claim for a MBTA violation in this 1963 case. (39)

   It is an undeniable fact that technology has advanced since the inception of the MBTA. Industrial activities present a much larger challenge to bird populations than the original threat of overzealous market hunters. During the 1970s, the definition of take expanded to incidental or accidental killing by otherwise lawful activity. (40) Industries such as oil and gas, timber, mining, chemical, and electrical were now faced with liability. (41) It is important to understand that not just hunters, but also industrial effects have contributed to the startling amount of bird loss recorded since 1970, where to date, approximately three billion birds have been lost in North America alone. (42)

   According to the Department of Justice, it will notify companies with violations and work with them; however, "if [companies] 'ignore, deny, or refuse to comply' with best management practices, then the 'matter may be referred for prosecution.'" (43) The scope of activities that are incidental is an expansive one. Within admiralty and aviation activities, however, there are five standout causes.

5. Known Types of Incidental Take in Admiralty and Aviation

   1. Bird Strike

      A bird strike is a collision between an animal and a man-made vehicle, most commonly an airplane or boat. (44) The first recorded bird strike was by Orville Wright in 1905 as he flew the Weight Flyer over a cornfield in Ohio. (45) Between 1990 and 2017, civil and commercial aircraft pilots and airport personnel recorded 194,000 wildlife strikes in the United States, with approximately 14,400 strikes in 2017 alone. (46) Bird strikes happen most often during takeoff or landing or during low altitude flight. In fact, ninety-two percent of bird strikes occur at or below 3,500 feet above ground level. (47)

      However, airport personnel also report bird strikes at high...