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Migratory Bird Treaty Act

Introduction

The Migratory Bird Treaty Act of 1918 (MBTA) protects 1,093 migratory bird species that are native to the United States or its territories. The Act combines conservation treaties between the U.S. and Canada, Mexico, Japan, and Russia to ensure that bird populations common to the U.S. and each of these countries remain sustainable. Under the MBTA, it is illegal to capture, kill, sell, transport, or otherwise endanger members of a protected species unless authorized to do so by the U.S. Fish and Wildlife Service (FWS).

Background

Migratory birds are an important part of an ecosystem. Like all species, they contribute to biodiversity and preserve ecosystem balance. They are a part of the food chain, help with pollination and provide pest control.

An estimated three billion North American birds have been lost since the early 1970s. These declines in population are due to a cluster of factors:

  • Natural causes of mortality
  • Direct human action (e.g., machinery, explosions, toxic gas release)
  • Indirect human action (e.g., loss of habitat, ecological shifts due to climate change, environmental pollution)

Under MBTA, the primary responsibility for managing migratory birds lies with FWS, which has the objective of minimizing human-caused mortality in the protected species.

Enforcement

The Act protects migratory birds, primarily based on bird families and species included in the international treaties. It forbids hunting, trapping, injuring, or killing members of these species, as well as transporting, trading, or selling any bird, egg, or nest from them.

Knowingly taking a protected bird with intent to sell or barter is a felony offense, with penalties up to a $250,000 fine or 2 years in prison for an individual, or a $100,000 fine for an organization. Other violations of the MBTA may count as a misdemeanor, with penalties up to a $5,000 fine or 6 months in prison for an individual, or a $10,000 fine for an organization.

Permits are required to take, transport, buy/sell, or import/export any protected bird and their feathers, parts, nests, and eggs. Specific types of permits include those for educational use, scientific collecting, taxidermy, and falconry. Some permit exceptions apply to state game agencies and some scientific and educational institutions, including zoos and museums. A permit is not required for depredation control under a depredation control order, such as killing geese that endanger aircraft near an airport.

FWS prioritizes enforcement in cases that pose the greatest risk to migratory bird species. Violations that are lower priorities include:

  • Incidental take due to a member of the general public engaged in otherwise legal activities,
  • A federal agency performing conservation activities with the approval of FWS, or
  • An entity using accepted best practices to avoid and minimize incidental take, or following practices recommended by FWS.

2021 Changes to the MBTA

The MBTA has undergone many changes since 1918, as you might expect. 2021 was an especially eventful year for the act. On January 7, 2021, FWS published a rule that limited the powers of the MBTA by removing penalties for incidental take, which essentially made it legal to harm migratory birds except within the scope of a project with the explicit aim of doing so. On October 4, 2021, FWS published a rule revoking the January 7 rule, and published a Record of Decision to begin developing a new regulation that more clearly defines the MBTA’s prohibitions regarding incidental take.

Applicable laws & regulations

16 USC 703712 — Migratory Bird Treaty Act

85 FR 21262 — List of Bird Species To Which the Migratory Bird Treaty Act Does Not Apply

86 FR 54642 — Regulations Governing Take of Migratory Birds; Revocation of Provisions

Related definitions

“Migratory” means traveling between places for food or breeding purposes, usually in a periodic pattern, such as moving to a warmer climate for the winter.

“Native migratory bird species” are those that are present in the U.S. or its territories due to naturally occurring processes (biological or ecological) rather than human intervention. For example, wood ducks are native to the U.S. and protected by the MBTA. However, mandarin ducks, which are closely related to and often breed with wood ducks, are native to East Asia and came to the U.S. as pets that then escaped, so they are not protected by the MBTA.

“Incidental take” refers to harming, trapping, or otherwise endangering any protected species during the course of a lawful project that is not aimed at harming these species. An example would be destroying the habitat of a bird during a logging project. An “incidental take permit” allows this, provided that permit applicants also develop a conservation plan to minimize the harm to the species.

Key to remember

Complying with the MBTA requires research into whether protected migratory bird species may be present near a project, whether incidental take is likely, and which permits may be necessary to avoid violations.

Real world examples

In 2010, an oil drilling rig exploded in the Gulf of Mexico, damaging an oil well and killing 11 workers. Ultimately, four million barrels of oil leaked into the Gulf, with devastating effects on water, land, and wildlife.

An estimated one million birds died as a result of the spill, and migratory birds were found to have carried chemicals from the Gulf to Minnesota. Since the rig’s objective was to drill for oil, not harm birds, the effects of the spill on migratory birds all count as incidental take. Due to the provisions of the MBTA, BP Exploration & Production paid $100 million in fines for the impact on migratory birds.

Notably, these fines would not have been required if the spill had happened between January 7 and October 4, 2021, while the rule removing penalties for incidental take was in effect.

This is an especially dramatic example of the MBTA at work. A more common scenario would be the proposed construction of a wind farm on the migratory path of a protected bird species. Several types of incidental take would be likely:

  • Damage due to construction,
  • Injury and death in wind turbines, and
  • Changes to the migratory path, which can function as a loss of habitat.

To comply with the MBTA, the company constructing the wind farm would first have to apply for an incidental take permit from FWS. The permit process requires a habitat conservation plan detailing how the company would minimize the risks to the bird species. If the company did not get the permit or did not follow the approved habitat conservation plan, any incidental take would violate the MBTA.