Federal Government Clarifies Migratory Bird Protections

Published March 5, 2020

The U.S. Fish and Wildlife Service (FWS) has proposed a rule under which it would no longer prosecute entities that unintentionally or accidently harm or kill birds protected under the 1918 Migratory Bird Treaty Act (MBTA) unless the killings violate other federal laws.

The proposed rule would codify a December 2017 legal opinion from Interior Department Solicitor Daniel Jorjani that the more than century-old treaty does not allow prosecution for unintentional or accidental killings of migratory birds resulting, for example, from the construction or operation of infrastructure such as high-rise buildings, oil rigs, power lines, and wind turbines, or actions like clearing brush, digging or removing ponds, letting one’s cat outside, removing trees, or spraying chemicals, that don’t violate other laws, such as the federal Endangered Species Act.

If the proposed rule is finalized after the 60-day public comment period, only conduct intentionally injuring protected migratory birds, such as hunting or trapping them, will be prosecutable.

‘Bring Regulatory Certainty’

FWS representatives say the change is necessary to provide clarity to the scope of protections under the MBTA.

“With five federal circuit courts of appeals divided on this question, it is important to bring regulatory certainty to the public by clarifying that the criminal scope of the MBTA only reaches to conduct intentionally injuring birds,” said Assistant Secretary for Fish and Wildlife and Parks Rob Wallace in a statement. “That said, we will continue to work collaboratively with states, cities, conservation groups, industries, trade associations, and citizens to ensure that best practices are followed to minimize unintended harm to birds and their habitats.”

In a press release issued by FWS, dozens of business and consumer groups and public officials praised the agency for finally clarifying the scope of the law to prevent prosecutions for accidents.

Ending a ‘Regulatory Overreach’

The MBTA was never intended to lead to such prosecutions, says Alaska’s Gov. Mike Dunleavy.

“Advocacy groups have spent decades twisting and contorting a clear law through regulatory overreach,” said Dunleavy in the FWS press release. “I congratulate the Trump Administration as it continues to bring sanity to our country’s regulations and further empower states’ rights through this action and other logical reform.”

Alaskans have long protected migratory birds without any need for federal prosecutions, says Dunleavy.

“Alaska is a nursery to many migratory bird species,” said Dunleavy. “Alaskans celebrate the arrival and departure of these birds on their migrations and for the subsistence and other uses they support.”

‘Giant Thorn in the Side’

It is high time those enforcing the MBTA considered the intentions behind actions that result in harm to migratory birds, says Tammy Pearson, a county commissioner from Beaver County, Utah.

“The proposed changes to the Migratory Bird Treaty Act are long overdue,” said Pearson in the FWS statement. “The need to clarify what is not a criminal ‘take’ is important for energy, mining, ranching, and other industries that are critical to the economic stability of rural families, communities, and counties.

“This has been a giant thorn in the side of economic development for far too long, with projects being delayed for the potential harm that might happen to a bird despite the developer’s best intentions and protective efforts,” said Pearson.

‘Worst Types of Overcriminalization’

People should not have to fear prosecution for actions they could have no way of knowing violate the law, says Jonathan Wood, a senior attorney with the Pacific Legal Foundation.

“In a free society, criminal laws cannot be so open ended that any law-abiding person could be threatened with prosecution for innocent acts,” said Wood in a press statement. “The proposed rule properly rejects the worst types of overcriminalization previously resulting from Migratory Bird Treaty Act enforcement.

“Fortunately, there are many ways to conserve native birds without eroding basic principles of due process,” Wood said.

FWS’s proposed MBTA reforms would promote the rule of law by focusing on intentional actions, says Joe Luppino-Esposito, director of Rule of Law Initiatives at the Due Process Institute, in a statement.

“The way the Migratory Bird Treaty Act has been enforced has too often ignored … individual criminal intent, or mens rea … a fundamental prerequisite of criminal law,” said Luppino-Esposito. “Treating accidental harm to migratory birds as a violation of the [law] unfairly criminalizes unintentional conduct.

“The proposed change aligns with the rule of law and adds credibility to [FWS]’s enforcement actions,” said Luppino-Esposito.

‘Chilling Effect’

The proposed MBTA reforms will help farmers stay within the law, says Zippy Duvall, president of the American Farm Bureau Federation.

“While farmers and ranchers support the protection of American wildlife, they should not be subject to criminal prosecution for the unintentional take of a migratory bird,” said Duvall in a press statement.

For far too long, partisan politicians and bureaucrats have used the MBTA to punish people or industries they disfavor, says former North Dakota state legislator Bette Grande, a research fellow with The Heartland Institute, which publishes Environment & Climate News.

“Clarifying the scope of the Migratory Bird Treaty Act is long overdue,” said Grande. “Agenda-driven politicians and deep-state federal bureaucrats have expanded the scope of the MBTA to punish industries and citizens they don’t like.

“While the intent of the 100-year-old MBTA is laudable, its provisions have been increasingly twisted to fit particular ideological points of view,” Grande said. “The power of the federal government to creatively interpret federal policy has a chilling effect on business and threatens the liberty of our citizens, while the broad interpretation of ‘take’ that disregards ‘intent’ moves the MBTA beyond what the law should allow and what Congress intended.”

H. Sterling Burnett, Ph.D. ([email protected]) is a senior fellow at The Heartland Institute.