a discussion and overview of the basics of the Migratory Bird Act

1. U.S. Fish and Wildlife Service
Migratory Bird Program
Conserving America’s Birds
Migratory Bird Treaty Act 101
March 2020
What you need to know

2. U.S. Fish and Wildlife Service
Migratory Bird Program
Conserving America’s Birds
The Migratory Bird Treaties

3. Migratory Bird Program - Conserving America’s Birds
The Need for Bird Conservation
• Market hunting
• Plume trade (Millinery)
• Abundant species declining
• Unregulated killing
The 19th and 20th Centuries

4. Migratory Bird Program - Conserving America’s Birds
Over-Hunting
1800s and early 1900s – widespread un-regulated hunting
No seasonal restrictions
No Bag Limits
All species could be hunted
Wading birds are decimated

5. Migratory Bird Program - Conserving America’s Birds
Over-Exploitation Leads to Extinctions
Great Auk (1852) Labrador Duck (1880)
Carolina Parakeet (1918)

6. Migratory Bird Program - Conserving America’s Birds
Early Legislation
The Lacey Act (1900)

7. Migratory Bird Program - Conserving America’s Birds
An Unthinkable Extinction
• A vastly common bird
• “…darken the sky for days.”
• Economically important
• By early 1900s, pigeons are scarce
• 1914 – last pigeon dies in captivity
• Launches an era of bird conservation
The Passenger Pigeon

8. Migratory Bird Program - Conserving America’s Birds
International Implications
A Moment that Changed Bird Conservation

9. Migratory Bird Program - Conserving America’s Birds
1916 Migratory Bird Treaty with Canada
To address the conservation crisis – a treaty is signed to protect
migratory birds
1916 Convention established to stop the
unregulated slaughter of migratory birds
This treaty becomes the foundation for
other treaties and the implementing
legislation

10. Migratory Bird Program - Conserving America’s Birds
Four International Treaties
Developed to Protect Shared Resources
1916
1972
1936
1976

11. Migratory Bird Program - Conserving America’s Birds
International Treaties
Establishes Prohibitions for the Take of Migratory Birds
• Game vs Non-game hunting seasons
• Manage and prevent extinction
Forms the basis for the which species are protected by MBTA
Establishes a System for Permits to Take Birds
• Compatible with the conservation intent
Basic Tenets of All Treaties

12. Migratory Bird Program - Conserving America’s Birds
Implementing the Treaties
It is the responsibility of the Federal
Government to protect birds covered
by the treaties

13. U.S. Fish and Wildlife Service
Migratory Bird Program
Conserving America’s Birds
The Migratory Bird Treaty Act
Implementing the Treaties

14. Migratory Bird Program - Conserving America’s Birds
The Challenges
The Migratory Bird Treaty Act
• Implementing MBTA has always provided challenges
to both the government and the public
• MBTA is a strict liability statute
– Does not require that the a defendant willfully or
negligently killed birds
• Thus, the killing of 1 bird is a violation and can be
enforced

15. Migratory Bird Program - Conserving America’s Birds
MBTA Take Definitions
Under the MBTA it is illegal to:
…pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or attempt to hunt, shoot, wound, kill, trap,
capture, or collect…
MBTA does not protect habitat
MBTA does not protect inactive nests or nesting substrate
- but you cannot possess nests (or any parts)
Defined in Regulation not the Act (50 CFR 10.12)

16. Migratory Bird Program - Conserving America’s Birds
Purposeful vs Incidental Take
MBTA and Take
Purposeful Take
Take that is the purpose of the action
Generally, permits are available for these
actions
Incidental Take
Take that directly results from, but is not the
purpose of an activity

17. Migratory Bird Program - Conserving America’s Birds
Authorize Intentional Take of Birds through Permits
Purposeful Take
• Over 16 Types of Permits
• Permits of Interest to DoD
• Depredation (e.g., BASH)
• Scientific Collection
• Salvage
• Abatement
• Education

18. Migratory Bird Program - Conserving America’s Birds
A historical review
Incidental Take
• Under previous interpretations, any killing of 1 bird is a violation
and can be enforced
• Enforcement discretion depends on whether a project elected
to follow recommended best practices or not
• Courts have been split on whether incidental take is prohibited
under the MBTA
• The courts inconsistently apply the provisions of the MBTA,
utilizing different and often contradictory methods

19. Migratory Bird Program - Conserving America’s Birds
A new interpretation of MBTA and Incidental take
2017 Department of Interior M-Opinion
• Clarifies “take” to include pursue, hunt, shoot, wound, kill, trap,
capture, or collect or attempt any of these actions, with the
intent of taking migratory birds, nests or eggs
• There is a distinction between the intent to kill a bird and
knowing a bird will die
– If killing a bird is NOT the intent of the action – it is not
prohibited, regardless of whether you know birds might die
as a result

20. Migratory Bird Program - Conserving America’s Birds
Current MBTA Prohibitions
Purposeful Take – Prohibited Under MBTA
• Take that is the purpose of the action
• Authorized via permits when appropriate
Incidental Take – Not Prohibited Under MBTA
• Take that directly results from, but is not the
purpose of an activity
Purposeful vs Incidental

21. Migratory Bird Program - Conserving America’s Birds
Going Forward
The USFWS is mandated to conserve migratory birds
There is a dire need to continue to focus on bird
conservation
USFWS mission continues

22. Migratory Bird Program - Conserving America’s Birds
Loss of 3 Billion Birds in 50 Years
2.9 Billion birds lost over last 50
years – not entirely shocking
State of Birds reports have been
highlighting significant declines
But this should serve as a wake up
call that the bird conservation
community must look forward to
“what’s next”
Rosenberg et al. Science 2019

23. Migratory Bird Program - Conserving America’s Birds
Certain Birds Hit Harder Than Others
Rosenberg et al. Science 2019

24. Migratory Bird Program - Conserving America’s Birds
Urgency Is Needed

25. Migratory Bird Program - Conserving America’s Birds
Birds Matter Campaign

26. Migratory Bird Program - Conserving America’s Birds
Implementing the MBTA Today
USFWS will
• Continue to authorize purposeful take via permits
• Depredation permits – Bird Airstrike Safety Hazard,
Human Health & Safety
• Continue to work with any partner that seeks to reduce
impacts on migratory birds
• Develop and recommend voluntary beneficial
practices

27. Migratory Bird Program - Conserving America’s Birds
Addressing Incidental Take
Beneficial Practices

28. Migratory Bird Program - Conserving America’s Birds
Nest Destruction Memo
Intended to allow conservation outcomes without regulatory
burden
Any person/entity can, without a permit:
1. Temporarily possess and transport any sick, injured, orphaned
bird
2. Temporarily possess any egg or chick in imminent danger of
incidental take
3. Relocate any active nest in imminent danger of incidental
take (when species appropriate), and
4. Transport these items to a vet or rehab facility
Good Samaritan Policy

29. Migratory Bird Program - Conserving America’s Birds
Additional Considerations
• Compliance w/ Eagle Act and ESA still required
• NEPA still applies to all federal actions
• Executive Order 13186 remains in effect
Its not all about the MBTA

30. Migratory Bird Program - Conserving America’s Birds
Comparing the Acts that Protect Birds
Take Across the Statutes
Activity MBTA BGEPA ESA
Intentional Take Permits Available Permits Available Permits Available
Incidental Take Not Prohibited Permits Available Permits Available
Disturbance Not Protected Permits Available Permits Available
Inactive Nests Not Protected* Protected Protected
Habitat Not Protected Protected Protected
* Permit is required to possess an inactive nest

31. Migratory Bird Program - Conserving America’s Birds
50 CFR 21.15 Authorization for Incidental Take
• Congress passed 2002 National Defense Authorization Act
• Directs Service to promulgate regulations to authorize incidental
take for military readiness activities
• Rule can only be withdrawn if Congress does so through
subsequent legislation
DoD Readiness Rule
Authorizes incidental take for
readiness actions, when take does not
affect bird populations