The Migratory Bird Treaty Act: On the Wings of an Executive Branch Reinterpretation.

• Author: Powell, John K.
• Position: Animal Law

Surrounded by birds, their majesty is easily taken for granted. Evolving from dinosaurs and predating humans by more than 100 million years, birds populate every climate and ecosystem around the world. Whether diving at 200 miles per hour or precision hovering as if suspended in air, their grace and athletic prowess are arguably unmatched in the animal kingdom.

The Migratory Bird Treaty Act (MBTA), (1) one of the oldest and most successful wildlife conservation laws in our country, was enacted to protect these avian acrobats. On the heels of the Lacey Act, (2) the MBTA provided protections beyond just interstate transport, prohibiting the taking or killing of all migratory birds. Unlike the ill-fated passenger pigeon, the MBTA has stood the test of time, surviving without fundamental change. However, 100 years after its enactment, the MBTA finds itself at a crossroads, facing an executive branch interpretation that could fundamentally change its future. This article briefly revisits the history of the MBTA and explores two competing memoranda recently issued by the U.S. Department of Interior that come to diametrically opposing conclusions as to whether the MBTA prohibits the incidental taking of migratory birds, their eggs, and nests.

By the 1900s, bird populations were under severe threat. Unrestricted hunting and the lucrative millinery industry, which used feathers and wings to embellish women's hats, led to the demise of millions of birds. The extinction or near-extinction of multiple avian species followed, such as the heath hen, great auk, Labrador duck, Carolina parakeet, and the passenger pigeon, once the most abundant bird in North America. (3) There were an estimated 5 billion passenger pigeons at the time Europeans discovered America, with early writers describing the birds in terms of countless numbers, infinite multitudes, and flights a mile wide and taking several hours to pass overhead. (4) It was incomprehensible for settlers to believe that humans could impact nature in any meaningful way, much less eradicate an entire species. Nevertheless, by the turn of the 20th century, there were no remaining wild passenger pigeons. (5) Many other bird species suffered, too, coming to the precipice of extinction. It is estimated that during a single nine-month period, 130,000 snowy egrets, admired for their wispy pure white plumage, were killed in the U.S. for use in the London millinery market alone. (6)

Republican Congressman John F. Lacey of Iowa, recognizing the dire situation, introduced the Lacey Act in 1900. (7) Mindful of the limitations on federal authority and as pronounced in the state ownership doctrine confirmed just four years earlier in Geer v. Connecticut, 161 U.S. 519 (1896), (8) the Lacey Act was drafted strategically, and intended to augment state authority rather than supplant it. More specifically, the Lacey Act criminalized the shipment of wild animals and birds killed in violation of state law, required all interstate shipments to be clearly labeled, and removed federal restrictions on the states' ability to regulate the sale of wildlife within their borders. (9) The Lacey Act, signed into law by U.S. President William McKinley on May 25, 1900, became the first federal law protecting wildlife. (10)

The initial effectiveness of the Lacey Act was mixed though, with courts often referring to it in decisions rather than relying on it. (11) It wasn't until the 1910s when the Lacey Act's ability to supplement state wildlife laws became better established, (12) including its first direct interpretation in Rupert v. U.S., 181 F. 87 (8th Cir. 1910). (13) In its defense, the Lacey Act was up against a formidable foe with massive profits available to successful market hunters and a general lack of enforcement. (14) Congress' response to the unsustainable killing of birds did not end with the Lacey Act. The Weeks-McLean Migratory Bird Act, intended to stop commercial market hunting and the illegal shipment of migratory birds from one state to another, was passed in 1913, but found unconstitutional shortly thereafter. (15) The Convention between the United States and Great Britain for the Protection of Migratory Birds in the United States and Canada (Canada Treaty) was signed in 1916. (16) The Canada Treaty adopted a uniform system of protection for certain species of birds that migrate between the U.S. and Canada. (17)

Most notably, the MBTA was passed in 1918, which implemented and expanded beyond the provisions of the Canada Treaty. The constitutionality of the MBTA was quickly challenged by the state of Missouri, but nevertheless upheld by the U.S. Supreme Court, which found it was a necessary and appropriate means of effectuating the Canada Treaty. (18) The Court noted that the protection of birds migrating between countries requires an international agreement enforced with a congressional law, as was done with the MBTA. (19) Justice Holmes writing for the majority stated that "[b]ut for the treaty and the statute, there soon might be no birds for any powers to deal with." (20) Since its passage 100 years ago, the MBTA has been amended multiple times, including for the implementation of treaties between the U.S. and Mexico, Japan, and the Soviet Union (now Russia). (21)

As the name implies...