A Reinterpretation of the Migratory Bird Treaty Act

May 29, 2018
Migratory Bird Treaty Act
Marc ChalufourThe century-old Migratory Bird Treaty Act protects more than 1,000 species, including the great blue heron.

Update: A coalition of environmental groups filed a lawsuit against the Department of the Interior and Fish and Wildlife Service on May 24, 2018, challenging a December 2017 memo that reinterpreted the Migratory Bird Treaty Act.

This year marks the centennial of the Migratory Bird Treaty Act (MBTA). One of the nation’s oldest and most impactful environmental laws, the act has benefited species from Atlantic puffins to bald eagles, loons, great blue herons, and wood ducks. Despite the law’s success, the Trump administration has begun taking steps to limit the MBTA’s scope and effectiveness, a policy change that could have significant implications for bird populations.

The MBTA prohibits killing, trapping, and selling listed birds without a permit. Enacted in 1918, following the decimation of bird populations from unregulated commercial hunting, the law now protects more than 1,000 bird species. According to the National Audubon Society, the MBTA has prevented millions of bird deaths and saved many species from decline or extinction.

The recovery of the common eider, a North Atlantic sea duck that was nearly eliminated by hunting and habitat loss in the early 20th century, is just one MBTA success story. By 2000, Maine’s eider population had rebounded to 29,000 nests on 320 islands, and the species is now thriving in Massachusetts.

During its first half-century, the MBTA was mostly used to prosecute illegal hunting and trapping. Since the 1970s, the act also has covered accidental deaths caused by energy companies—a significant contemporary threat. According to studies cited by the U.S. Fish and Wildlife Service, communication towers, power lines, oil waste pits, wind turbines, and other energy infrastructure kill about 50 million birds annually. Fines levied after the 1989 Exxon Valdez oil spill in Alaska and the 2010 BP Deepwater Horizon oil rig explosion in the Gulf of Mexico were used for wetland restoration and conservation. The law also has motivated implementation of proactive bird-friendly practices, such as covering oil pits and building wind turbines away from avian travel corridors.

In an abrupt change from nearly 50 years of federal policy, the Trump administration issued a legal opinion in December concluding the MBTA applies only to intentional actions, such as hunting and poaching, and not to accidental deaths—including those caused by energy companies. The House Committee on Natural Resources proposed clarifying the MBTA to support this position. The suggested amendment is currently pending in Congress.

The new opinion has elicited a range of reactions. Supporters argue the previous interpretation allowed too much leeway for federal prosecutors and unfairly targeted fossil fuel producers. “The opinion returns the rule of law and will help prevent the disparate treatment of industries and the politically motivated use of the MBTA as a weapon,” says Kathleen Sgamma, president of the lobbying group Western Energy Alliance.

Others believe weakening the MBTA will eliminate incentives for energy producers to take protective measures, threatening bird species that are already suffering from habitat loss, deforestation, and climate change. “This landmark law is needed more than ever,” says Gary Clayton, president of Mass Audubon. “While we have made great progress protecting birds, hundreds of species are at risk, and many are facing long-term declines.”

As it enters its second century, the MBTA’s future is uncertain. Although the current administration controls short-term federal policy, the scope of the law could change as Congress debates the proposed amendment, and the act may be reinterpreted by subsequent administrations. In the meantime, with no legal recourse to address accidental deaths, bird populations now face a potentially significant threat.


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John S. Burk

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