Migratory Bird Treaty Act Prohibits Intentional, But Not Accidental or Unintended, Killing of Birds

The U.S. Fish and Wildlife Service has issued a rule interpreting the Migratory Bird Treaty Act to prohibit intentionally harming or killing birds, but not harming or killing birds by accident, such as might arise from oil spills, or incidental to other activities not intended to harm or kill birds, such as farming or operation of wind turbines. While characterized by some critics as a “rollback” or “weakening” of the Act’s protection of birds, the rule actually clarifies the law’s meaning in keeping with the interpretation of most courts that have considered the question.

The Migratory Bird Treaty Act (MBTA) was enacted in 1918 to help fulfill the United States’ obligations under a 1916 treaty with Great Britain. The Act makes it unlawful for anyone “at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, [or] possess” migratory birds or their nests or eggs except in accordance with regulations of the U.S. Fish and Wildlife Service (Service). Violation of the MBTA’s take prohibition generally is a misdemeanor punishable by fines and imprisonment; some violations, e.g., those involving selling birds, are felonies.

Not until the 1970s, more than 50 years after the MBTA’s enactment, did federal prosecutors begin applying it to incidental take. In the years since, federal courts have reached conflicting conclusions on whether the MBTA prohibits accidental or incidental take of birds, and, if so, to what extent. Several have held that the Act criminalizes such take at least in some circumstances. Others have ruled that it does not.

Much is at stake. If the MBTA exposes those who accidentally or incidentally take birds to criminal liability, the vast scope of that potential liability would put many Americans at risk. Currently, 1,027 species of birds, including all those native to the United States and its territories, are covered by the MBTA; in that sense, the MBTA offers broader protection than does the Endangered Species Act, which protects only 100 or so bird species listed as threatened or endangered. Of an estimated total population of more than seven billion birds in the United States, the Service in 2018 estimated annual deaths from the top threats:

• Cats – 2.4 billion birds
• Collisions with building glass – 599 million birds
• Collisions with vehicles – 214.5 million birds
• Chemical poisoning (e.g., pesticides and other toxins) – 72 million birds
• Collisions with electrical lines – 25.5 million birds
• Collisions with communications towers – 6.6 million birds
• Electrocutions – 5.6 million birds
• Oil pits – 750 thousand birds
• Collisions with wind turbines – 234 thousand birds

While the government has generally limited the problems posed by an expansive reading of the MBTA by exercising its prosecutorial discretion to charge only very few who would fall into the Act’s broad sweep, the ever present threat and uncertainty renders reliance on a prosecutor’s sense of fairness less than ideal.

In December 2017, the Principal Deputy Solicitor of the Department of the Interior issued an Opinion interpreting the MBTA to prohibit only intentional, not incidental, taking of birds. That Opinion differed from a Solicitor’s Opinion issued only months earlier in the waning days of the Obama Administration that reached the opposite conclusion. In February 2020, the Service proposed a rule interpreting the MBTA in keeping with the new Opinion. In the meantime, litigation over that Opinion led to a decision on August 11, 2020, by a district court vacating the Opinion and adding its voice to those courts holding that the MBTA covers incidental take. The Service appealed, and that appeal is pending.

On January 7, 2021, the Service issued a rule establishing that the prohibitions of the MBTA “apply only to actions directed at migratory birds, their nests, or their eggs” and “[i]injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the [MBTA].” It becomes effective February 8, 2021.

The Service explained at length why the text and purpose of the MBTA indicate its prohibitions on pursuing, hunting, taking, capturing, or killing only criminalize actions specifically directed at birds and why it agrees with the courts reading the statute likewise. Fascinating as the entirety of the Service’s explanation may be to aficionados of statutory interpretation, suffice it to say that the Service relied primarily on the Act’s legislative history and the concept that when words are associated in a context, such as a list, suggesting they have something in common, they should be assigned a permissible meaning that makes them similar. The ambiguous terms “take” and “kill,” thus, should be understood like “pursue,” “hunt,” and “capture,” to refer to affirmative acts directed intentionally at birds, and not to acts that accidentally or incidentally cause injury or death.

While maintaining that its reading of the MBTA is compelled as a matter of law, the Service added that it adopts it as a matter of policy as well. Noting that an expansive interpretation of the Act would subject those who engage in common and necessary activities, such as operating a power line, wind farm, or drilling operation to an inherent risk of criminal liability for incidental take, the Service decided that such otherwise lawful and useful activities should not be criminalized and those engaged in such activities should not be forced to take their chances and hope to avoid prosecution simply because the government has chosen to forgo prosecution.

The incoming Biden Administration may change or undo the new rule in response to widespread criticism of it. The Service could rescind or amend the rule through another rule-making process, which would take the better part of a year or so. It might more quickly delay the rule’s effective date, perhaps even long enough to enable it to rescind or amend the rule before it ever takes effect. Congress, newly controlled by Democrats, could as well repeal the rule under the Congressional Review Act. That Act enables Congress to review and overrule a federal agency’s regulation provided it does so within 60 “legislative days” of being notified by the agency of publication of a final rule.

For now, though, the Service and more than half the courts that have considered the issue agree that the MBTA prohibits intentional, but not accidental or incidental, taking or killing of birds.

David Ivester
235 Montgomery Street, Suite 935
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630